We extend our record-breaking run with a discussion of the Court's two big recent emergency docket rulings: Noem v. Vasquez Perdomo and NIH v. American Public Health Association.
We extend our record-breaking run with a discussion of the Court's two big recent emergency docket rulings: Noem v. Vasquez Perdomo and NIH v. American Public Health Association.
[Divided Argument theme]
Will Baude: Welcome to Divided Argument, an unscheduled, unpredictable Supreme Court podcast. I'm Will Baude.
Dan Epps: And I'm Dan Epps. So, we are extending our record for a number of episodes in a season by at least one more, with more than three weeks to go. You think this is 27?
Will Baude: Yeah. Just when I thought we were out, they pull us back in.
[laughter]
Dan Epps: There's no out anymore in SCOTUS world. Alas, we don't get a break. They don't get a break. Listeners don't get a break.
Will Baude: Some of them are on book tour. It's not convenient.
Dan Epps: Yeah, it would be nice if those on book tour would be willing to appear on our show. Seem like a logical outcome. Other folks who've got books have come and talked with us, but so far, no Justices have been interested.
Will Baude: The invitation is open.
Dan Epps: It's very open. It's wide open. So, if you were a Justice and you are doing a publicity tour, we would be happy to host you, and I think we'd be friendly.
Will Baude: Of course we'd be friendly.
Dan Epps: Wewould be polite. I mean, we'd definitely be friendly. I think some people might worry they'd come and get fastballs. I don't think we probably wouldn't do that. We would be appropriately respectful, much to the chagrin of some listeners.
Will Baude: [laughs] Yes, I think that's right. I don't know what speed of ball we normally pitch here.
Dan Epps: Well, I mean, I try to throw hard at you, but I don't know. It doesn't connect a lot of the time. And you're very gentle. You don't pat them back at me with great force just because of your friendly and restrained nature.
Will Baude: I got a lot of bruises on my arm.
Dan Epps: [laughs] You're armored up. You've got plot armor.
Will Baude: [laughs] Where should we start?
Dan Epps: Well, a lot of stuff in the email inbox. Too much again. It fills me with dread every time I look at it. Not because there's bad stuff in there, but just because we get too much more than we can really process. You suggested maybe doing a feedback episode where we just plow through the backlog. I like that in theory. Whether we actually do that in practice, I'm not sure yet, but if there's time, I would like to do that. But for now, I'm just going to continue my streak of pretending that inbox has nothing in it. And let's just talk about stuff the court has done, and let's just focus on too big emergency docket decisions since we last recorded.
Will Baude: Dan, we're changing the name to interim docket.
Dan Epps: Is that official yet? I thought that was still in the works.
Will Baude: Justice Kavanaugh floated it at a recent appearance.
Dan Epps: Okay. But in at least one of these decisions, the Justice still uses emergency docket. Justice Sotomayor still uses emergency docket. So, I don't think there's been any consensus on that question.
Will Baude: And she's supposed to say shadow docket because that's the left-wing term now.
Dan Epps: That's the critical term.
Will Baude: It's the shadow docket. If it's bad, it's the emergency docket, if you like it, and it's the interim docket to try to bring everybody together.
Dan Epps: Why is the emergency docket good?
Will Baude: I was like, “We've got to do it. It's an emergency.” They're in the shadows because it's an emergency. And also, because I think Justice Alito is the one who tried to make that happen with his unpublished Notre Dame speech.
Dan Epps: Okay.
Will Baude: I don't make the rules, Dan.
Dan Epps: [laughs] Well, however much you don't, I do even less. So, let's talk about these two. One a little bit less, a little bit colder off the press than the other. So, the first one from August 21st. So, I guess we're a little bit more than two weeks behind the curve on this one, which is National Institutes of Health v. American Public Health Association.
Will Baude: Mm-hmm. Well, we're still feeling the chill of this one, so we should definitely talk about it. All right, so this is everything these days, an application by the Trump administration for stay of a lower court decision. The district court for the District of Massachusetts had issued a judgment vacating the government's termination of various research related grants. So, the NIH wants to terminate a bunch of grants and has some guidance about terminating those grants. And the Trump administration says that kind of thing is not supposed to be dealt with by a preliminary injunction. This is supposed to go to the Court of Claims because that's where fights about whether we owe you money go. They go to the Supreme Court to try to get the injunction stayed. The Supreme Court says something very long.
Dan Epps: Yeah.
Will Baude: I don't think we can read the whole thing.
Dan Epps: We've read longer. I mean, it's two meaty paragraphs.
Will Baude: Yeah.
Dan Epps: But the bottom line is a Solomonic ruling.
Will Baude: All right, yeah, let me take a stab at a paraphrase. There's a discussion of Solomon and Justice Barrett's new book too.
Dan Epps: I actually don't really like the phrase Solomonic. People just use it to refer to things where you split the difference. But that's not actually what happened in the Story of Solomon. He suggests that as an option, but it actually was just a ruse to get to the heart of the matter in which one side clearly won, right?
Will Baude: Right. I mean, Solomon was what we would now call a penalty default rule. And that Solomon announces, on the basis of no obvious legal authority, that he will kill the baby [laughs] and then tries to use that threat to elicit the behavior for the parties. Decisions in which you actually cut the baby in half are not favored under Solomon, as I understand.
Dan Epps: Yeah.
Will Baude: I guess we don't know if he would have carried through with the threat.
Dan Epps: Yeah, I mean, maybe he wasn't expecting it to work as effectively as it did.
Will Baude: Right. All right, so the Supreme Court got this application from the Trump administration to let the NIH cut all the research grants, and it granted the application as to the district court's judgments, vacating the government's termination of various research related grants, citing Department of Education v. California, a previous per curiam about grant litigation having to go to the Court of Claims rather than go through the APA, discuss the irreparable harm. But then it said, “The application is otherwise denied.” What was it denied as to. Separately, the District Court had also tried to vacate various guidances issued by the NIH about the grants and those can still be enjoined for reasons that-- [crosstalk]
Dan Epps: Were vacated?
Will Baude: Yes. I guess vacated. Isn't a vacatur a junction now?
Dan Epps: I don't know. This is your thing.
Will Baude: Anyway, the district court can rule against the guidances, but not the terminations pursuant to the guidances, the terminations go to the Court of Claims, but the guidance itself can be enjoined by the district court, hence splitting the baby. This is a determination that makes sense only to Justice Barrett, who writes an explanation of this, while the other eight Justices would all either deny the application in full, Justice Sotomayor, Justice Kagan, Justice Jackson, and noted liberal Chief Justice Roberts would deny the application in full, while Justice Thomas, Justice Alito, Justice Gorsuch, and Justice Kavanaugh would grant the application in full. That was too much for a capsule, but-- [chuckles]
Dan Epps: Yeah, no, that was decent. So, where we end up with the bottom line is where. So, you're an entity that has had your grant terminated and you don't want this to happen in the future and you want your money back. What is your litigation strategy now?
Will Baude: Well, definitely, if you want your money back, you still have to go to the court of claims to do that.
Dan Epps: Okay.
Will Baude: But in the future, maybe you think you have a better chance now because the district court has made clear that the guidances are not okay. Although, the extent, the government might keep doing it anyway in the future without the guidance. One thing that emerges from this, which Justice Barrett discusses, is that this may require two track litigation. You might have to litigate in both places.
Dan Epps: And you can't necessarily do it simultaneously. It might have to be like seriatim?
Will Baude: Yes, because as Justice Jackson notes, and as Justice Barrett acknowledges, there's a statute, 28 U.S.C. § 1500, which forbids the court of federal claims from existing jurisdiction over claims pending in other courts when those claims arise from substantial the same operative facts. So, you can't pursue your court of federal claims litigation if that issue is also pending in federal court.
Dan Epps: So, you would go to federal court and say that this guidance is unlawful under Administrative Procedure Act principles.
Will Baude: Yes.
Dan Epps: You win on that, say.
Will Baude: Yes.
Dan Epps: What are the consequences you said, but that winning on that under the Barrett worldview, doesn't provide any concrete relief in terms of money. Does it mean that the government can't rely on that going forward to stop paying you grants?
Will Baude: I think they can't rely on that guidance going forward to stop paying you grants.
Dan Epps: What if they just do it for a different reason?
Will Baude: Well, that might be an issue. And you would also go to the court of federal claims to then get your money back to say, “You should have given me that grant, as evidenced by the fact that I've already litigated against the guidance.” I'm not sure what estoppel a res judicata would apply in that litigation.
Dan Epps: Doesn't res judicata not apply against the government?
Will Baude: Well, nonmutual res judicata doesn't apply against the government, but real res judicata, like double jeopardy still applies the government.
Dan Epps: Well, I mean, there's a specific double jeopardy clause.
Will Baude: Yeah, but then the court has said that even beyond double jeopardy, like collateral estoppel in criminal cases applies anyway.
Dan Epps: Okay, but if they said that in the APA Tucker Act's context?
Will Baude: I'm not sure.
Dan Epps: Again, that's still coming out of double jeopardy principles.
Will Baude: I'm not sure the extent to which one of these judgments is preclusive.
Dan Epps: I mean, there's also this question as to whether the refusal to pay grant monies owed because of these allegedly legally bogus reasons, whether that is properly the subject of a suit in the Court of Federal Claims.
Will Baude: I think the court has made clear it is, right?
Dan Epps: Well, the court has made clear that's where you're supposed to sue. Justice Jackson seems to say, “Well, maybe actually-- that's for contract claims. This isn't actually a contract claim. And maybe if you go there, that claim doesn't work there either. And maybe you have no forum.” Do you think that's conclusively ruled out?
Will Baude: No. I mean, well, that would be ridiculous. [laughs]
Dan Epps: A lot of things would be ridiculous that are true.
Will Baude: [laughs] I realized that was a nonanswer. [laughs] I'm not sure. And I guess more generally I've been trying to figure this out. For months now, we've had all these various things that are supposed to go to the Court of Federal Claims. I have not been able to figure out whether they have gone to the Court of Federal Claims yet, or even is there some separate nexus of these claims that you would hope that sort of [unintelligible [00:12:39] litigators have got a batch of these terminated grants that they're just working through the Court of Federal Claims to build up good precedent there or something.
Dan Epps: So, the Court of Federal Claims, that's an Article I court.
Will Baude: If you like that terminology. It's a non-Article III court.
Dan Epps: Yeah. What do you like?
Will Baude: Well, all lower federal courts are Article I courts.
Dan Epps: In that they're created by Congress?
Will Baude: Yes.
Dan Epps: Okay. But in the typical terminology, we would call that an Article I court.
Will Baude: Yeah. Some people would call it an Article II court because the officials that staff that are [crosstalk] second branch.
Dan Epps: Yeah, that might better. What do you like though?
Will Baude: I just like non-Article III court or so-called legislative court or legislative so-called court.
Dan Epps: That's too long.
Will Baude: They're not really a court.
Dan Epps: Trying to keep this episode snappy. We are not going to introduce longer terminology. Okay.
Will Baude: Okay.
Dan Epps: Do we know how long those judges serve? I mean they're not just immigration judges that can be reassigned at will.
Will Baude: There's a debate about this. I think they have some statutory protection against removal. But I believe some student comment which I relied on in one of my articles suggests that they may well be removable under the unitary executive principles. It's not clear why they wouldn't be.
Dan Epps: And then appeals from those decisions would go to the Federal Circuit.
Will Baude: Yes.
Dan Epps: Okay, that would be interesting.
Will Baude: Where the administration's tariffs are recently validated and there's currently a cert petition about that we'll have to talk about soon.
Dan Epps: Yeah, that's going to get granted, right?
Will Baude: It's got to get granted.
Dan Epps: Yeah.
Will Baude: The only question is how quickly it'll be expedited, I think.
Dan Epps: Yeah.
Will Baude: I mean, they could sum rev, I guess.
Dan Epps: That would be ridiculous.
Will Baude: If they really want to send the message that they are for the Trump administration and the lower courts, cut it out, they will sum rev the tariff.
Dan Epps: Which like every day it seems more true, right? I mean, I think the story seemed a lot more nuanced a couple months ago.
Will Baude: I don't think anything has changed in the past two months.
Dan Epps: I mean, the win-loss record has become increasingly lopsided, right?
Will Baude: Well, not a ton. There haven't been that many cases in two months.
Dan Epps: True. But there's a more profound tilt.
Will Baude: I mean, each new win increases the win-loss record by a little bit because they lost some in April and since then, they figured out what to do.
Dan Epps: And none of the wins I think, had much of a flavor of, gosh, the Trump administration is doing questionable things. It needs to be careful.
Will Baude: Well, two things, I guess. One is, I think basically every win the Trump administration has had has been on procedure rather than substance. I think with the exception maybe of the firings, the court has not really said anything that the administration might be doing is actually lawful. They've just said that the challenges fail for various reasons. Now, obviously, if you thought it was really unlawful, you might say something about that. But I just think we're still in phase one of the temporizing phase. And next term, when we presumably get merit's rulings on tariffs, birthright citizenship and the Alien Enemies Act, we'll know a lot more.
Dan Epps: Yeah.
Will Baude: I don't think Trump opponents should be counting on a win in all three of those things by any means. Actually, think about this opinion on the scorecard. So, the NIH, I think we formally have to rank as a split baby. There were two issues for the court, and the court gave one to the plaintiffs and one to the administration actually does a lot to disrupt the lopsided record. Now, it is totally unclear from the opinion how much that matters. There's a lot of discussion in the opinion about like, “Does it even make sense to vacate the guidance without the grants. Because the grants don't really matter.” But I don't know the answer to that question.
Dan Epps: Yeah, I guess if you're doing it on this formal scorecard, fair enough.
Will Baude: Yeah. Okay. There's a lot to talk about here, but I think the most interesting thing to talk about is this concurrence by Justice Gorsuch. Do you want to cover anything else about the split baby before we get there?
Dan Epps: Well, I mean, should we talk about anything that Justice Barrett says, even though she is not the nominal author of the paragraphs at the beginning, but, I mean, she's the spiritual author of them, even if she didn't actually author them because this whole thing is controlled by her vote.
Will Baude: Yeah.
Dan Epps: So, anything-- I mean, she walks through her reasoning pretty straightforwardly. She says, “Oh, there's other contexts in which we have approved this split channeling.” Okay. And that's just the way the jurisdictional scheme works in this instance. And I guess--
Will Baude: Well, she says she's not even sure it works that way. She says that she's not sure that these two things are the same, but if so, so be it.
Dan Epps: Yeah.
Will Baude: Right.
Dan Epps: I thought she's saying she's not sure--
Will Baude: “If the challenges to the guidance and grant terminations have the requisite factual overlap, and I am not sure they do. The plaintiffs will have to proceed sequentially rather than simultaneously.”
Dan Epps: Right, but that's a question of whether the Tucker Act's jurisdictional provision prevents it from happening simultaneously. But she is saying they have to be split, right?
Will Baude: Yes, I guess they have to be split. And the only question is how badly.
Dan Epps: Whether they can do it at the same time or.
Will Baude: Yeah. Okay. Yes. Right. So, we have previous precedent, this barely existing decision in Department of Education v. California that says, “The grants should go to the Court of Federal Claims. So that's that.” She just doesn't agree with the government that says because the grants have to go the Court of Federal Claims, “Everything should have to go.” But she also doesn't agree with Chief Justice Roberts and Justice Jackson that because the guidance doesn't have to go, the grants don't have to go. Calling balls and strikes. There is one ball and one strike.
Dan Epps: Okay, so we don't know whether the batter strikes out or [Will laughs] gets on base.
Will Baude: Exactly.
Dan Epps: Okay, we need some more pitches here.
Will Baude: Yeah.
Dan Epps: Okay. And then very short, partial dissent by the Chief, joined by the liberal Justices, sort of saying, like, these really are inseparable. Have to be the same thing.
Will Baude: Yes.
Dan Epps: I mean, under the Barrett approach, I guess I don't really understand what you get if you win in the district court action, if it doesn't undo the stuff that actually happened, to wit, the failure to pay the grant money.
Will Baude: I don't understand this scheme well enough to know, but it seems like it's not incoherent. If you imagine cases of prosecutorial discretion, there are times it's like the executive branch has done a bunch of things and also issued guidance saying, “As a matter of policy, this is what we're going to do.” And then like in all the immigration cases, people came in and said, “Well, at a minimum, we're challenging the guidance. We understand a court can't necessarily second guess any individual decision, but you can't have this general policy, and the governor of the policy seems to do some work.” And then if you want to challenge the individual decisions, now that we know the policy doesn't exist, you go somewhere else for that. It's not at least conceptually inconceivable to me, although it may be practically impossible. I'm not sure.
Dan Epps: Yeah.
Will Baude: And to the extent that some of this, of course, is all we're talking about, each of these rulings are generally symbolic. Like, is the term administration totally lawful and totally cool or not? Getting some adjudications that these things were not lawful might be useful in general.
Dan Epps: Yeah.
Will Baude: For APA litigation.
Dan Epps: Okay, so.
Will Baude: Okay, that's Barrett, that's Roberts.
Dan Epps: Yeah. Slightly longer thing by Gorsuch.
Will Baude: Okay. Justice Gorsuch, with whom Justice Kavanaugh joins, concurring apart and dissenting in part. “Lower court judges may sometimes disagree with this court's decisions, but they are never free to defy them.” Then he complains that in this case, the district court granted a stay in part because it agreed with the dissent in California v. Department of Education rather than majority, which is the wrong opinion, and thought that because it was only a shadow docket, emergency docket, interim docket decision. It wasn't entitled to the same presidential force. And Justice Gorsuch says, “Well, that's wrong. As, of course, decisions regarding interim relief are not necessarily conclusive as to the merits because further litigation may follow. But regardless of a decision's procedural posture, its reasoning, its ratio decidendi carries precedential force in future cases.
And then he goes on to complain, “This is the third time a district court has been ignoring our shadow docket decisions and that's very bad.”
Dan Epps: Yeah, I mean, it's interesting. I mean, first of all, I think it's a little unfair to the lower courts, which are dealing with these situations where they have very limited guidance. They're working on very tight timelines and dealing with pretty unprecedented factual situations. I guess if you're someone who views the current state of affairs and what's happening legally and you think the big problem is lower court judges not following Supreme Court decisions enough. I don't know. I just think we live in a different universe.
Will Baude: Well, so I'm not sure which universe we live in, and I want to talk about that, but on the merits. This seems really weird to me for a couple reasons. One is the district court did also try to distinguish the California case for reasons that the Supreme Court half agrees with. So, it seems like an especially odd case to reprimand the district court for thinking the previous decision was distinguishable, when in fact a majority agrees that it's distinguishable. And, I mean, as we talked about on this podcast until Trump v. Boyle, I thought the official story was that these decisions were not presidential and that the reason it was okay that they were issuing them without deliberation, oral argument, or extensive briefing was that they were just like the Supreme Court's tentative judgments. And the reason it was, okay, they weren't writing very much is because they hadn't decided very much.
So, it seems a little weird to issue a decision, announce, I think, for the first time that these decisions are controlling as a matter of vertical precedent, and then reprimand a district court for distinguishing that precedent and partially getting affirmed.
Dan Epps: [laughs]That's fair.
Will Baude: Now, I take it the real reason to issue it is not this court, but the general thing. There's a general theme of the district courts are not getting with the program.
Dan Epps: But what is the program? Does the program just let Trump do what he wants? It's sort of what it's starting to look like, at least for some of them.
Will Baude: Right. So, here's the problem is one way to see what's going on is the district courts all have Trump derangement syndrome and are getting out over their skis, sort of shortcutting procedures to find some way to stop the evil second Trump administration. But the Supreme Court, which is sober and believes in law, is trying to get everybody to cool their jets and apply the normal legal rules. I'm sure Justice Gorsuch would tell us he's doing. Another way to see it is the district courts are applying the normal procedural rules to an unprecedented situation.
The Supreme Court, in its infinite wisdom, thinks the normal rules can't be applied anymore because whatever, they like the Trump administration or they don't like the Trump administration, but they think that if they applied the normal rules to the Trump administration, he would knock over the table and run away or whatever. And so, they're trying to get everybody to cool their jets and they aren't willing to say that explicitly. And now they're expecting the district court to carry all the water for them and getting mad at the district courts for not pre complying, which I'm sure is what the district courts think.
Dan Epps: Yeah. Even though the district courts are, I think, generally faithfully trying to follow precedent that's been in the books for decades.
Will Baude: Yeah, well, I mean, that's-- [crosstalk]
Dan Epps: [crosstalk] -lengthy opinions, doing their best.
Will Baude: Right. I mean, look, I think is it going to be too on brand do I say, I think everybody's doing their best here.
[chuckles]
Dan Epps: But some peoples best has to be worse.
Will Baude: Well, so this is the thing I think that's the worst about this opinion is until this opinion issued, it was easy to say, “Look, the district courts are doing their best or not or whatever, and if the Supreme Court doesn't like it can reverse them.” And that's how it works. This kind of like meta commentary seems to have now set off several rounds of drama. I don't know how much you've been following, but after this decision, the district court judge, at a random hearing, I mean, at a hearing in this case on the record, decided to apologize Justice Gorsuch and Justice Kavanaugh for implying that he might have ever disrespected their authority. Another district court judge of Massachusetts in the Harvard case decided to issue a footnote like rebuking the Supreme Court for suggesting the district court should apologize.
Dan Epps: Yeah.
Will Baude: Justice Breyer went and talked to the New York Times about how the district court is a totally honorable judge who would never do anything. Apparently, there's a whole Massachusetts thing about this. So, you talk to people in Boston, they're really worked up about this. And then a dozen district judges went and talked off the record to NBC News about how mad they are at the Supreme Court. So, that seems not good.
Dan Epps: Yeah, I don't think maybe this has not accomplished what they wanted it to.
Will Baude: For sure. Unless, if the goal of this was either to stir up trouble or to make right wing Twitter marginally forgive Justice Gorsuch for Bostock, it may have accomplished one of those two goals. I can't imagine either of those two things was just the Gorsuch's highest goal.
Dan Epps: No, I think he genuinely is annoyed about this. I guess I just question the judgment of someone who looks at the current state of play and thinks that the institutions that need most chiding are the district courts that are, I mean, I do think are trying very hard to deal with some really unprecedented circumstances and faced with conduct by this administration that has really, in my view, undermining the rule of law and showing contempt for the law.
Will Baude: So, I definitely agree about the second part. I do think this is the most unconstitutional administration we've seen in a while. I do think some of the district courts really are getting out over their skis. I mean, maybe in part, again, justifiably thinking like, “Well, this is an unprecedented assault on the rule of law, so we're going--” And so, I do share some of the majority's frustration with that. But I just think of the Supreme Court, they can reverse the district if they go too far. And it would be easier to sell a story where the district court is the neutral arbiter of law if the administration had more of a mix of losses with their wins. Although again, this case where the administration partly lost, you could have imagined would have been built very differently.
You could imagine the same message sent the opposite way, saying, “The district courts should be patient. Look, sometimes the administration's losing, sometimes they're winning. Don't just assume they should win them all. Don't just assume they should lose them all” rather than this one, which seems to have been a concurrence in the wrong case.
Dan Epps: Yeah. And I mean, in general, I think a lot of these cases are presenting hard legal issues and I struggle to say in any one of these cases, what the lower courts have done is totally outrageous and way out over their skis and not defensible under current law. I think part of the thing that's compounding the problem is this court doesn't agree with some precedent that normally would guide what lower courts are doing.
Will Baude: I mean, I agree with that and it's hard to speak in generalities. I think there are some of the immigration cases where the lower courts seem to be squirming around some of the jurisdictions, different provisions in the immigration law in a way that's eyebrow raising.
Dan Epps: Yeah.
Will Baude: And I find some of the removal cases where the court has been the most explicit about what's coming and what it expects the lower courts to do and the lower courts are still granting removal remedies. I forgive the court for being exasperated in those cases, but still, I basically agree with you. And regardless, it just seems like, well, let me say this actually, one of the vices of the shadow docket because the court doesn't explain its reasoning as much, people don't know what is expected of them, and they don't know why the Supreme Court has legitimate reasons for what it does. And the Justices then complain that this is just whining and there's no real alternative or whatever. But this does seem to be proving the point. Maybe the court should just grant cert in some of these cases and write real opinions where it talks about court of Federal claims of jurisdiction, and then we could move on. [laughs]
Dan Epps: Yeah, but so far, they're not doing that. They're doing more shadow docket stuff and then getting more imperious about, how lower courts are supposed to just treat that like it's a real Supreme Court authority.
Will Baude: Right. So, I did also this thought, and I think sometimes some of these decisions on the shadow docket are really decided very quickly, and the Justices have not thought very carefully about them. But some do reflect, like, a lot of internal drama and arguing, and they eventually hash something out and come to something. And I wonder if sometimes when that happens, they forget that we don't know that.
Dan Epps: Yeah.
Will Baude: It may well be the Department of Education really reflected some much more extensive internal discussion than is revealed in the opinion. And so, I could then understand emotionally getting exasperated and be like, “We just went through this. Come on, guys.” But they do have to check and see.
Dan Epps: Yeah, that's possible. Interesting that Justice Kavanaugh joins this too.
Will Baude: Yeah. What do you think is up with that?
Dan Epps: He must agree with that. He's usually in his opinions trying to chart a little bit of a middle course, if not substantively, maybe rhetorically. And here he seems to think that lower courts are trying to defy the court, again, surprising to me.
Will Baude: But why do you think Alito and Thomas don't join it?
Dan Epps: That's a good question. I mean, is it possible they have different views on the stare decisis effect of the shadow docket orders?
Will Baude: It's possible?
Dan Epps: It's possible.
Will Baude: It’s possible, they like defying the court sometimes, and they don't want it just thrown back at them when they champion the Northern District of Texas.
Dan Epps: Yeah.
Will Baude: I've heard theory that it's on purpose that it's the two Trump judges who are not Justice Barrett doing this. Again, one cynical theory is this is virtue signaling by the Justices to show President Trump that they're not betraying him. I don't think that's conceivable, but I have heard theory.
Dan Epps: Maybe. I don't know. What's in it for them, right? They have left in here.
Will Baude: Well, you've seen theory that the president should elevate Justice Kavanaugh to the Chief Justiceship when it becomes vacant.
Dan Epps: I hadn't, but I also think it's unlikely to become vacant in the next two and a half years.
Will Baude: Me too.
Dan Epps: Unless we get third or fourth Trump term.
Will Baude: Yeah.
Dan Epps: Well, at which point I think we probably stopped doing the podcast.
Will Baude: [laughs] You would stop doing the podcast in the third Trump term?
Dan Epps: I mean, what would be left of constitutional law at that point?
Will Baude: Lots of countries have done this, Dan.
Dan Epps: Become authoritarian? Yeah, that's true.
Will Baude: Lots of countries have specifically let their president, who was not supposed to run for future terms in some way evade, overturn, or defy that rule.
Dan Epps: Russia did that.
Will Baude: El Salvador.
Dan Epps: It's a great country. No problems there.
Will Baude: They probably need a Supreme Court podcast in El Salvador.
Dan Epps: I think that El Salvador has done, in my understanding, it's done a good job with domestic crime control. Maybe not a great job with human rights, fair treatment of prisoners, stuff like that. Maybe not so good.
Will Baude: If you're suggesting that the podcast might be forcibly shut down and us in some way punished or sanctioned in that world. Not a crazy.
Dan Epps: I'm not sure that we are a big enough fish to be of concern to the authorities in that world. But, I mean, I think if we are in that world, I think a lot of stuff is on the table. Whatever meaningful checks there are left now on what I see as pretty egregious rule of law violations, I think those are gone, in a world where we have decided that actually he can go again.
Will Baude: I mean, I think it's not going to happen. I think there's no reason it will happen. But I do think it's weird how-- I don't know, some of these regimes seem to be able totally violate some rule, and then still parts of the regime seem to still exist. I don't know.
Dan Epps: Yeah.
Will Baude: Rule of laws.
Dan Epps: We will revisit the continued existence of the podcast as it comes. So, we'll see.
Will Baude: All right, let's get through the season, Dan. The podcast is not ending this season.
Dan Epps: I hope not.
Will Baude: Okay. Anything more to say about this? You want to talk about the Jackson dissent?
Dan Epps: Yeah. I mean, there's a lot there. Perhaps most significant is her accusation of Calvinball, which on the one hand I enjoyed because nice reference to Calvin and Hobbes, one of the great comic strips of all time that my older kids have discovered and are quite enjoying. I didn't think it was maybe a perfect application of the concept. So, the rule of Calvinball is that there's no rules. You can just make them up as you go. She says, “This is Calvinball jurisprudence with a twist. Calvinball has only one rule. There are no fixed rules. We seem to have two. That one and that this administration always wins.” Well, I mean if you have a fixed rule, it's not Calvinball, right.
[laughter]
It's just a game with bad rules.
Will Baude: Yes, I agree.
Dan Epps: Am I being petty?
Will Baude: No, I think you got to pick your metaphor. It's fine to go with the Calvinball accusation and say they're constantly making it up. And again, that actual accusation would work better because the administration did not win every issue in this case. It's an equally like both Justice Jackson and Justice Gorsuch appear to have prepared concurrences in a decision that did not actually issue, which does make you wonder if that was a late breaking modification by Justice Barrett.
Dan: Yeah, that's interesting.
Will: Because you want to say, “Well, even when the administration doesn't win, it's for made up reasons that are incoherent, whatever as here rather than, yeah. So I was a little disappointed that there were no citations to. Steve Sachs has a short article on Calvinball and the Constitution contrasting his account of originalism. So, my account of originalism with Calvinball. Because the idea of originalism is you start with law of the origin and you can have lots of change. Each change has to be according to the rules of change, constitutional amendments, etc., and Calvinball violates that.
Dan Epps: So, who's Calvinball? Am I Calvinball?
Will Baude: What is your theory of constitutional interpretation, Dan?
Dan Epps: It's that it's complicated.
Will Baude: Okay, well no, Calvinball is not complicated.
Dan Epps: Yeah, I mean my theory is obviously not that we should just make it all up. I think my theory is some version of law in our system is and always has been some evolutionary process. I don't think every move has to be traced back to the founding in the way that you guys do that it's just you have to write out this series of axioms and find the break and then you get a problem. I think that law before the founding and after evolved as a matter of social practice. And I tend to think that's okay as long as it's tempered by analogical reasoning and Burkean conservatism and various other things.
Will Baude: Right. I think a lot would turn on if you think the rule of evolution has been continuous and you always have to obey that, then that would be a form of originalism. If you think that meta evolution is possible so that you're allowed to evolve in ways that are not permitted by the preexisting rules of evolution, nor by the preexisting meta rules of evolution, nor by the preexisting-- You know what I mean? And that goes back to the originalism question. But that may not be a helpful way to frame it.
Dan Epps: Yeah, no, that's fair. You guys have a sufficiently capacious understanding of what it might mean, that as long as there's some overarching rule that is from time zero and can only be changed through legitimate means, I think you're still under the broad umbrella of originalism.
Will Baude: Right. As long as you're following the original rules of change, then that's originalist. And then the question is, now again, I think there are theories and yours may be one where you don't really just think in terms of original rules of change. So, there could be changes that don't match the original rules of change because you just never asked to justify that. But that would be the question. People liked the Richard Primus episode, not just for the discussion of the book, I think, but for the discussion of this constitutional theory. So, proving that our worth as constitutional law professors.
Dan Epps: Well, we'll see.
Will Baude: Okay.
Dan Epps: All right, so I guess that's it. Let's go on to the next one. Noem v. Vasquez Perdomo. Okay, this one is more recent. This one is from yesterday, from our recording session today. It's Tuesday, September 9th. This will probably be out in the next day or so, but this is a bit fresher. And here we have a shorter-- What do we call these things, this text that's just like before the separate opinions, but doesn't have the magical per curiam language.
Will Baude: I think it's just an order.
Dan Epps: Yeah, yeah, because I guess these are classified as opinions in connection with orders. So, this is an order. This order has no content. It basically just says, “This order entered by the US District Court is stayed pending the disposition of the appeal in the US Court of Appeals for the Ninth Circuit and disposition of a petition for certiorari. Just to know your standard form language when you're granting a stay.
Will Baude: Yeah, just wait until district courts are scolded for not following it.
Dan Epps: [laughs] I'm sure they will be.
Will Baude: That's the first capsule, what it was that was stayed? The District Court for the Central District of California issued an injunction against part of the immigration raids that are taking place in the LA metropolitan area. Exactly, what the injunction said is a little bit ambiguous as well. But the key language is that the district court found that the federal government was engaged in, had certain criteria for these immigration stops they were doing all over the county. And among other things, it enjoined the government from relying solely on the factors below, alone or in combination, to form reasonable suspicion for a tenant stop except as permitted by law and the four factors are apparent race, speaking Spanish or speaking with an accent, being present at a particular location like a bus stop, car wash, tow yard, day labor, pickup site, etc., and the type of work one does. So, you can't detain people just because they are Hispanic people at a day labor site.
Dan Epps: And the language they speak.
Will Baude: Right. For instance. Now, exactly what it means to say solely and alone are in combination except as permitted by law produces all sorts of confusing ambiguities. We can get to in a minute. But the core of it is the district court thought these immigration sweeps were overbroad and potentially unconstitutional and tried to rein them in and the Supreme Court now said, “No, go forward. Business as usual.”
Dan Epps: Yeah. And as Justice Kavanaugh tells us, there are two challenges, two reasons why this seems to have been, in his view, problematic. And one is a standing issue. The short version of which is that the court has made it extremely difficult to get injunctive relief for Fourth Amendment violations.
Will Baude: Yeah.
Dan Epps: The famous case called Los Angeles v. Lyons, which is about police use of chokeholds. But the basic proposition is you can't really get an injunction to get the government to stop engaging in some practice unless you can make a strong showing that you personally, not people, generally, are going to be subject to that practice again.
Will Baude: Yeah. Is that true, even if you have a group of people?
Dan Epps: I mean, I don't think it would be true if you had a true class action if you had a group, you would need one member to have standing, right?
Will Baude: But I'm just wondering, are they going to go back and try to get a class action certified and then try this again?
Dan Epps: I mean, I would.
Will Baude: Okay.
Dan Epps: Especially given that we don't know from this order whether that was the only problem. We know what Justice Kavanaugh thought, but we don't know if that was the only problem. The court could also think that even if they're standing, this claim would lose on the merits.
Will Baude: Yeah. It's also a little weird. So, in Lyons, the constitutional violation, were these unconstitutional chokeholds being used by the LAPD, excessive force. And the court's formalist response was, “Well, yes, you've been unconstitutionally choked in the past, but there's no particular reason to believe that you, out of all the people in Los Angeles are going to be stopped and unconstitutionally choked in the future.” It's just happening. Here, it's little different because that was a case where the targeting was not challenged. It was just like what the police did to you if they happened to get their hands on you. Here the challenge is the targeting. So, it's a little weirder to say, I mean, Mr. Vasquez Perdomo is more likely than your average Angeleno to be stopped.
Now, you could say he's no more likely than your average Spanish speaking day laborer to be stopped. But the whole point of the policy is that a lot of people in that category are being stopped.
Dan Epps: Yeah. I mean, if he could establish that he was being stopped daily, I mean, he should have standing, right?
Will Baude: I think one of the plaintiffs was stopped twice in a ten-day period.
Dan Epps: Yeah. It seems a lot better than the Lyon situation where it's not like everybody was getting choke held multiple times a day.
Will Baude: Right. So, I mean, now I think Lyons has come to stand for this broader proposition that injunctive relief is just disfavored in cases generally. Although, it's a little weird.
Dan Epps: Yeah. I mean, it shouldn't be-- I don't think it should be read to stand for the proposition that you can never get such relief because there are circumstances in which Fourth Amendment rights have been vindicated in that posture. So, I was thinking of City of Indianapolis v. Edmond. Do you remember this one?
Will Baude: This is a checkpoint.
Dan Epps: Yeah. It's one of these checkpoint cases where the court says, “You can have drunk driving checkpoints, where basically you're stopping every car just to make sure nobody's drunk driving. That's allowed. But you can't have drug interjection checkpoints where you just stop every car to like see if they have drugs.” That doesn't work. And the plaintiffs there filed a lawsuit on behalf of themselves and the class of motorists. So, I think that case maybe didn't get to the stage of class certification. It just was all litigated on the preliminary injunction standard side. But I don't know that seems okay.
Will Baude: Yeah.
Dan Epps: Why is that different?
Will Baude: Well, I guess there they have reason to believe because the checkpoint is by its nature indiscriminate. They have reason to believe that we served at the checkpoint.
Dan Epps: They'll definitely get if they say, I am going to drive through this checkpoint.
Will Baude: Right. So, the other related problem Justice Kavanaugh points to here is, well, even if he is stopped in the future, we don't know if he stopped on the basis of the prohibited factors and the basis of some other factors, which is a little bit like the other case he cites, Clapper v. Amnesty International, which is where people were not allowed to challenge the war on less wiretapping practice. Because even if it's true that a bunch of their calls are being wiretapped, we didn't know why they were being wiretapped. They might have been wiretapped under the statute they were challenging, but they might have been wiretapped under other authorities, they were okay, so it's speculative to think that this is why he'll be stopped.
He might be stopped because he's a Hispanic day laborer, but he might be stopped because he's near some other people who they suspect or I don't know what the other factors are.
Dan Epps: Yeah.
Will Baude: You know, in their brief the Solicitor General uses as an example, like “What if it's a specific employer that's already been sanctioned 30 times before for employing undocumented workers?” You know, that's got to be reasonable suspicion.
Dan Epps: Yeah. And I read there's a case, Brignoni-Ponce, I don't know how you're supposed to pronounce that, which is about these roving stops that the government conducted near the US Mexican border to try to find people who were crossing the border illegally. And the court says you can do those based on reasonable suspicion. And they list, various things that you can look at. And here it says, “The officers relied on a single factor to justify stopping respondent’s car the apparent Mexican ancestry of the occupants.” The court says, “We cannot conclude that this furnished reasonable grounds to believe that the three occupants were aliens.”
Okay, basically, so there it does. The court says, “The likelihood that any given person of Mexican ancestry is an alien is high enough to make Mexican appearance a relevant factor. But standing alone, it does not justify stopping all Mexican-Americans to ask if they're aliens.”
Will Baude: Yeah.
Dan Epps: Okay, so I mean, to the extent that the district court is just saying you can't stop people because they look Mexican. That's right to the extent the district court is saying, “You can't stop people even when all of those factors are met,” it's a little bit harder of a question. And to the extent that the district court were saying you can't stop someone, you can't even treat any of that stuff as a relevant factor, that seems wrong.
Will Baude: Can you tell what the district court was saying?
Dan Epps: No.
Will Baude: Okay.
Dan Epps: I mean, I think that I would charitably read it as saying in terms. And I think this seems to realistically describe what the government is doing, is just having a policy of doing these sweeps in locations that meet these four criteria. As I understand the record, they're not engaged in further deliberative discrimination beyond that point. They're just saying, “Let's go to these places, let's go to Home Depot and let's round up everybody who looks Hispanic and speaks with an accent and make them produce their papers.”
Will Baude: Right. And I guess what I can't tell is, so suppose after the injunction, they add another factor, a fifth factor. Does that factor have to be enough on its own to be reasonable suspicion so that you can't use these factors at all?
Dan Epps: I don’t think so.
Will Baude: Does it just have to be anything?
Dan Epps: I mean, as a matter of reading the scope of the injunction or the matter of constitutional law?
Will Baude: Well, both, I guess.
Dan Epps: As a matter of constitutional law, clearly not. I think the court has said evidence of ancestry can be a relevant factor.
Will Baude: Right.
Dan Epps: So that cannot be categorically off the table.
Will Baude: Right. And then isn't that all the district court's injunction does, though? So, if the government says, “We're stopping this person because they look Hispanic and also, they're wearing a hat with a Mexican flag.”
Dan Epps: I mean-- [crosstalk]
Will Baude: Wearing a hat with the Mexican flag alone is not real suspicion, but it's fact.
Dan Epps: Yeah. I mean, I don't I have answer on the reasonable suspicion calculus, but it would be one more thing on the scale, and so it could be enough to tip it over.
Will Baude: Right. I mean, this is, I think that one thing that concerned the government is I think they can't tell if the court would then try to hold them in contempt for that.
Dan Epps: Well, that seems wrong.
Will Baude: If it would.
Dan Epps: Yeah.
Will Baude: Because when the court says, “You can't rely on these factors except as permitted by law,” maybe it's saying you've got to have enough other facts to establish reasonable suspicion, or maybe it's just saying, “You can't rely solely on these factors in combination, but you can add other things.” I mean, maybe the district court should clarify the injunction or maybe the government should have asked the district court to clarify the injunction.
Dan Epps: Yeah. You know, one remedy you can always do in one of these cases is be clear on what would be allowed and what wouldn't be allowed and send it back down rather than just a blanket stay.
Will Baude: So, are you saying basically that while this seems super troubling, it's actually on the merits, probably constitutional under the courts, super troubling Fourth Amendment precedents, is that your bottom line?
Dan Epps: Well, I'm not sure about the Lyons part.
Will Baude: Okay. No, but the merits part. Like, do these cases say, “You can stop Spanish speaking Hispanic day laborers at bus stops.”
Dan Epps: If there's enough other stuff to get you over the line of reasonable suspicion?
Will Baude: Is being a day laborer enough other stuff?
Dan Epps: I don't know. I don't think that I have a clear answer to that question.
Will Baude: Okay.
Dan Epps: I would like it to be not enough. I would like it to be something a little bit more articulable as to the individual in question or at least as to the environment because if this is enough, I mean, it basically just enables you to create this dragnet in these environments. And basically, anybody who looks Hispanic, who works as a day laborer at Home Depot has to get stopped and produce their papers. And in general, in a free society, I think we should maybe err on the side of not allowing that to happen.
Will Baude: Is the math relevant to this? So, if it were the case that a quarter of the Hispanic appearing day laborers at Home Depot were in violation of the immigration laws, it's like 25% chance, then would that be enough to say, “Okay, those aren't sufficient facts to create reasonable suspicion.”
Dan Epps: If a quarter were not--
Will Baude: So, if a quarter of the people you stop are unlawful, are in violation of the law.
Dan Epps: Yeah, that's tough. Because the court--
Will Baude: Doesn't have to be probable cause, right?
Dan Epps: Yeah. Courts generally-- Well, I don't know. It might be probable cause.
Will Baude: It does [crosstalk] to be. I mean, it doesn't-- [crosstalk]
Dan Epps: Yeah, I mean, it doesn't have to be probable cause, something less than that. But unfortunately, or fortunately, courts don't like to turn these squishy standards into actual mathematical probabilities.
Will Baude: Right. Because the reason I ask is there is this remarkable asserted statistic in Justice Kavanaugh's opinion and in the government's brief that might be slightly exaggerated, but I'm not sure it's off banner order of magnitude that 10% of all people in the LA metropolitan area are undocumented immigrants.
Dan Epps: Yeah. If that's correct. I mean, it is a very high number.
Will Baude: Then you might say, “Well, being in the LA metropolitan area has reasonable suspicion.”
Dan Epps: Yeah. I mean, and certainly if you add in all these other facts, I mean, probably is a lot more than 10%, assuming that base statistic is correct. But maybe the right way to think about it isn't just percentages. I mean, maybe the right way to think about it is kind of like, what burden is this putting on citizens who can be stopped wrongfully?
Will Baude: Mm-Hmm. And so maybe the more it's something sort of specific that you could avoid, like if you don't want to be stopped, don't make furtive movements and put bus tickets in your pockets or whatever. But it's not reasonable to say, “Don't live in LA,” or even don't go to Home Depot or don't be Hispanic.
Dan Epps: Yeah. I mean, the thing I liked the least about Justice Kavanaugh's concurrence was the way in which he just reads as if he's credulously accepting the government's account of the facts about the way these things work as Justice Sotomayor points out, I mean, there's definitely evidence in the record that even people who are citizens are still not treated well in these inquiries. It's not like you just say, “Oh, I'm a citizen,” and then they let you go. People are violently accosted by masked officers. These aren't pleasant encounters. And Justice Kavanaugh basically puts very little weight on the interest of legal residents and citizens from avoiding those encounters.
Will Baude: Yeah.
Dan Epps: And again, just seems to not choose to pretend all the bad evidence doesn't exist there.
Will Baude: So, friend of the show and co-blogger Richard Re has a post about this case posted shortly before we recorded, and he, I guess, tries to read that as possibly actually an intentional move to push back against the administration. Like the idea would be Justice Kavanaugh was upholding these saying, “They're okay because of course they're brief and all the U.S. citizens are allowed to go about their business ASAP, right?” And that might function to reunion a little bit. Is that too optimistic?
Dan Epps: Maybe a little bit. I think if that was the case, he could have done a little bit more to wink as to that. I mean, he does say, well, if there is an excessive force claim, they could still bring those suits. I mean, those suits are very hard to bring for other reasons.
Will Baude: Yeah.
Dan Epps: So, I think there's maybe a way you could have done that which would have been slightly more pointed, saying this is all dependent on this representation and if that's not the case, we should revisit this or whatever.
Will Baude: Yeah. So, I think I like least about the opinion was the extra editorializing of an immigration policy.
Dan Epps: Yes, that was also I found that a bit problematic.
Will Baude: There’s a little bit of, “I express sympathy for all of the illegal immigrants who come to the United States to escape poverty and the lack of freedom in their home countries. But the fact remains that they are jumping the line and they're imposing costs on their people.” And I don't know, that seemed a little out of-- [crosstalk]
Dan Epps: Yeah, it seemed a little nonjudicial in an opinion that contained a certain amount of language reminding judges to stay in their lane and stay away from immigration policy.
Will Baude: Right. Or maybe it's fine. So, these are equitable balance in the equities type cases. So, if the idea is, we need to consider not just the law, but also the broader public policy, that's fine. Although, then I would think we want to broaden the aperture to think not just about immigration policy, but about all the things Justice Sotomayor points out in her dissent. Is this an ordinary attempt at law enforcement or is this an intentionally overbroad dragnet designed to terrorize Hispanics regardless of status and citizenship? Yeah, it seems a lot.
Dan Epps: Yeah.
Will Baude: Then there's the funniest part of the opinion which we haven't talked about yet.
Dan Epps: Okay, what's that?
Will Baude: Okay, so Justice Sotomayor points to in her dissent sort of the ways in which these arrests or stops are effectuated, often with what seems like grossly excessive force. And so, Justice Kavanaugh responds to that and says, “That's not part of the case. It's not part of what we should consider here. To the extent that excessive force has been used, the Fourth Amendment prohibits such action and remedies should be available in federal court.” So, he's saying to the extent that any ICE agents have used excessive force, that's unconstitutional with the Fourth Amendment. That's true. And remedies should be available in federal court. What remedies would those be?
Dan Epps: It is not an injunction, I think.
Will Baude: It's a non-injunction. So, there used to be something called Bivens that created remedies for Fourth Amendment violations against federal officers. But in several recent cases, including Egbert v. Boule and Hernandez v. Mesa, the court has narrowed Bivens specifically what it involves the border or anything potentially involving the border as saying that's a special factor that would require extending Bivens. And then they have something called qualified immunity that certainly blocks. I mean, you can sometimes get damages for excessive force notwithstanding qualified immunity when it's especially egregious. But the court has been explicit that the fact that you engaged in unconstitutional excessive force is not enough to get the qualified immunity. It has to be extra unlawful. On top of that, somebody told me that this is an allusion to the Federal Tort Claims Act, which allows suits for state law battery against federal law enforcement officials, although with damages caps and with an exception for conduct.
Dan Epps: There's a law enforcement exception, isn't there?
Will Baude: Well, there's a law enforcement proviso. In general, you cannot sue for intentional torts under the FTCA, except you can sue law enforcement for intentional torts. But then there's also an exception for discretionary functions, which I would think a lot of this might be. Although, some circuits say that violating the Constitution is never a discretionary function, but others disagree. So, I don't know if that's theory. I saw Orin Kerr tweet earlier, before this was issued, “That presumably the remedy is going to be the exclusionary rule in immigration proceedings,” which--
Dan Epps: Is that a thing?
Will Baude: Apparently in every circuit it is a thing for especially egregious conduct.
Dan Epps: That can't really be what he means.
Will Baude: None of these can really be. I pointed this sentence on Twitter and tried to crowdsource what it was about. Several people told me I was misreading it because they said, “Look, he doesn't say remedies are available in federal court. He knows they're not. He just says they should be.” [laughs]
Dan Epps: And it's unfortunate that they're not. They should be, but alas.
Will Baude: And that's something I would say it's a little weird for a Supreme Court Justice to say it unless he's expressing an intent to change the way the remedies work. And then the last thing somebody suggested to me is that “Available doesn't mean available.” You could say remedies are available. You can go ask for them now. [laughs] You might not get them for all sorts of reasons like qualified immunity and lack of cause of action. And the law enforcement advisor, I'm not taking a position on whether you actually get your remedies, but they're available in the technical sense, not the colloquial sense.”
Dan Epps: Okay.
Will Baude: None of that.
Dan Epps: Yeah, that would be good to know.
Will Baude: And the only other hypothesis I had is that the thing this reminded me the most of is, in Justice Kavanaugh's concurrence in Dobbs, which we talked about ages ago, there's this part where he's talking about various issues and he talks about, could one state criminalize going to another state to get an abortion? And then before you come back to your home state?” And he says, “Of course not. That would be unconstitutional. That would violate the right to travel with no citations.”
And I think he knew that was, in fact, very unclear from the legal materials currently available, but he just thought, as a matter of common sense, that can't be right, and probably thought that by saying that, of course, can't happen, he would help make it not happen. And so maybe the same thing is happening here. Maybe he knows, in fact there's a Byzantine wall of things that stop you from getting remedies. And he actually thinks that's bad and is saying this to encourage courts to find some remedy if there is excessive force, bias agents, maybe.
Dan Epps: Maybe it would be nice to have a little bit more guidance as to what specific ones he thought.
Will Baude: Yeah. Yeah. Okay. More on this.
Dan Epps: I don't think so. I mean, I think I still have the big picture question I was talking to you about earlier, which is, is the court just now decided, has it decided it's just going to roll over for everything Trump does, despite this really unprecedented sequence of norm busting, shocking rule of law, threatening actions? And I want to come back to something that you said as an aside that I liked, but maybe it was a little surprising, which is you were like, “Of course, if the Biden administration had done the flip side of some of these actions, of course the court would have struck it down in an instant.”
Will Baude: Did I say that?
Dan Epps: I think so. I don't remember the exact phrasing, but I'm pretty sure you did. I mean, do you forget saying that?
Will Baude: Did I say it just now or like an earlier episode?
Dan Epps: No, no. Earlier. Like several episodes ago.
Will Baude: Yeah, I remember saying that. And then I was like, I got some pushback from that.
Dan Epps: But let's be real. I mean, if the Biden administration had said on day one, “ICE shouldn't exist, we're cutting all funding to ICE, firing everyone at ICE.”
Will Baude: So, there's this case that Justice Kavanaugh likes to cite, US v. Texas, where what one of our listeners said is, “Look, Biden basically did that. He basically announced he didn't want to criminalize immigration enforcement anymore.” And then in US v. Texas, he won. Supreme Court said he could do that. Now, I don't think that's quite an accurate description of what Biden said. I do think the Trump descriptions of these things are more blatant and less papered over than the Biden descriptions. But the other big difference is in US v. Texas, the government asked for a stay pending appeal like these stays, and it was denied. So, it's true the government won in the end, but only after first not getting to be the executive branch for two years while they were stopped by the Northeastern Texas.
Dan Epps: And what about the previous United States v. Texas, where the government lost by an equally divided vote?
Will Baude: The Obama DACA/DAPA policies?
Dan Epps: Yeah.
Dan Epps: Yeah. I don't know if the interim relief was there. I guess there was a nationwide injunction in place.
Dan Epps: There was an injunction in place, as I recall. I think the fifth Circuit had affirmed, and then four Justices thought that should stay in place.
Will Baude: Right. So, one thing I do think is different.
Dan Epps: And how is that fundamentally different than some of the things going on here?
Will Baude: I do think the extent to which the Trump administration is getting emergency relief, like, as a matter of course, for things that are very edgy, is more than the Democratic administrations got.
Dan Epps: Yes. I think that's hard to argue with.
Will Baude: Now, I've seen pragmatic justifications for this, like the court is building credibility because they're going to strike down the birthright citizenship order next term. And that takes a lot of courage. And so, they're working up the courage to do that. Maybe they're going to strike down the Alien Enemies Act proclamation the Fifth Circuit just invalidated, or maybe the tariffs. So, I've seen that theory.
Dan Epps: Yeah. Right. Now, if you take the larger picture, if I was a lower court judge, the guidance I'm getting reading between the lines is, “Stop ruling against Trump.”
Will Baude: You know how equity has these maxims, like equity will not join a criminal prosecution and equity requires unclean hands. I joked with another expert in equity that there is an equitable maxim that equity will not enjoy the Trump administration.
Dan Epps: I mean, it's not unfair.
Will Baude: It's a little unfair. They enjoined the guidance imposed by the National Institute of Health.
[laughter]
That may not matter to the revocation of the grants.
Dan Epps: If we go back a few months when we had the round of Abrego Garcia decisions, I really was like, “Okay, this court is maybe a little troubled by some of the stuff that the administration is doing and maybe it really is going to be a little bit of a check. And I think that was around when I wrote my piece on what do we think about the court reform debate right now where everyone is looking to the court.” I'm going to write a follow up to that piece shortly.
Will Baude: So, here's the thing, though. Another hypothesis is after the court pushed back there, Solicitor General John Sauer had a talking to the administration and said, “You got to let me pick my battles a little bit more and let me look.” Because there are a bunch of things that have been enjoined that he has not taken to the court. The law firm executive orders are enjoined, but there hasn't been an original application. The Harvard preliminary injunction hasn't gone up yet. A ton of the Alien Enemy Act stuff hasn't gone up yet. So, it seems to me the data is also consistent with the Trump administration faces approximately a million preliminary injunctions, and Solicitor General Sauer takes approximately 20 of them.
The ones on which he's confident he can get a win because he's got a merits argument and a procedure argument, and it comes from California or whatever. Now, maybe the court shouldn't fall for that. Maybe we'd say even if the SG is only bringing winners to the court, the court ought to open its eyes and express their frustration. But I don't know if that's what's happening, it's a more complicated story.
Dan Epps: I mean, it's certainly the court. I wish the court were giving this administration a little bit more of a signal that you're getting a little bit out of your lane and you're doing some stuff that's troubling us, dial it back right now. I think the signal is just full steam ahead.
Will Baude: So, how many things and which ones would the court have to strike down by end of the 2025 term for us to be reassured? I take it the Birthright Citizenship Order is table stakes. That's obviously unconstitutional, and they don't really deserve credit for striking that down.
Dan Epps: Yeah, if that's the only one, then no, that's insufficient.
Will Baude: Yeah. If we add terrorists and alien enemies, is that enough?
Dan Epps: That's pretty good.
Will Baude: Okay.
Dan Epps: That's pretty good because those are three marquee things.
Will Baude: Yeah.
Dan Epps: I mean, I'm deeply disturbed by the basic attempt to just eradicate federal agencies by executive order agencies that are created by Congress.
Will Baude: Yeah. And what if the Court of Claims litigation finally gets back to the court a year and a half from now and they say, “Oh, yeah, [chuckles] actually all these things you did not, spending the money were all impermissible.”
Dan Epps: I mean, that would be nice. I mean, that said, I think the Jackson dissent very persuasively notes that there is really the truly irreparable harm in this situation that I don't think is comparable to the harm of the government, that all these labs are going to have to shut down and euthanize a bunch of animals and so forth.
Will Baude: Yeah. No, that's fair. And then I guess I do also think how I feel about this will depend a little bit on what happens to the Gavin Newsom administration, or whatever we're imagining as the Buttigieg administration in 2028. If the many nationwide injunctions against them already pending in the Northern District of Texas are quickly stayed by the Supreme Court in equal measure, then it's easier to say, “Okay, the court has moved us to a new regime where it's giving [unintelligible [01:12:01] room. If we go back to the way the Biden administration was treated in 2021, it looks a little worse.
Dan Epps: Yeah, I'm just right now, I'm most concerned about our legal system and constitutional system being in a position where there could be a Newsom administration in 2029. I think there's a lot of bad stuff going on.
Will Baude: Somebody asked me this, “Do you think we will have free and fair elections in 2026?”
Dan Epps: I don't know.
Will Baude: Okay. I mean, we have gerrymandering and President Trump's attempt to take over the administration of federal elections. That could-- [crosstalk]
Dan Epps: Yeah. I mean, I think the gerrymandering is troubling. I mean, I think that those elections could still be free. I don't think they're necessarily fair in that situation. They're trying to eliminate one of the blue seats in my state. I find that deeply troubling. But I think they're realistic scenarios where certainly in 2028, where Trump tries something more aggressive. I mean, he's certainly getting people more comfortable with the idea of having military occupation of D.C. and I don't know, I mean, I'm getting a little sick of people constantly saying, “Oh, you're exaggerating. This is just talk. It's not going to be like that.” It's like, I don't know, he tried to steal the last election. Right?
Will Baude: I-- I don’t--
Dan Epps: He would have done it if he could have gotten away with it. And I think he might try just as hard this time.
Will Baude: I don't disagree, but I think it's unwise to take it seriously.
Dan Epps: I mean, even if it is serious?
Will Baude: Yes.
Dan Epps: We should pretend it's not?
Will Baude: Yes.
Dan Epps: Why?
Will Baude: Because that will make it less serious. The more you take it seriously, the more you put it on the table, the more you weaken the constitutional norms in question.
Dan Epps: Yeah, I don't know. I'm not sure if I agree with that. I mean, it seems like you're not allowed to pretend someone is going to attempt a coup until it's too late.
Will Baude: I don't know allow. I'm just saying it's unwise. I mean, it's a free country. [chuckles] People do unwise things all the time.
Dan Epps: Not sure if that's true, but yeah, I mean, I'm very, very disturbed by a lot of what's going on. Don't have anything good to say about it. And not super thrilled about how the Court is approaching this set of issues. And I was a little bit more hopeful a few months ago that the Court might rein us in a little bit. I didn't have a lot of confidence that the Court was going to fix all our problems. But meanwhile, the Court seems to be going full speed ahead with some other stuff. You know, the Court may dramatically cripple the Voting Rights Act in a case that's coming up.
Will Baude: That'll be good.
Dan Epps: Side note, I was one of the counsel for an amicus brief on behalf of my friend and colleague Professor Travis Crum, who is, I think fair to say is the leading expert on the Fifteen Amendment.
Will Baude: Yes.
Dan Epps: And he has, in my view, a really compelling brief in this pair of conjoined voting rights appeals that are being argued in just a few weeks. Making the argument that the Court's jurisprudence suggesting that racial gerrymandering is a Fourteenth Amendment problem is wrong, and only the Fifteenth Amendment regulates the use of race in voting and it does allow some amount of race conscious district creation. So, check that out.
Will Baude: Yeah, it's a great brief.
Dan Epps: Okay, thanks for listening. Please rate and review on the Apple Podcast app or wherever you get your podcasts. Visit our website dividedargument.com for transcripts, blog.dividedargument.com for commentary from the larger Divided Argument universe, including the post by Richard Re that Will mentioned a few minutes ago, store.dividedargument.com for merchandise. Send us an email pod@dividedargument.com or leave us a voicemail 314-649-3790.
Will Baude: Thanks to the Constitutional Law Institute for sponsoring all of our endeavors. Thanks for all of the feedback and encouragement from our listeners.
Dan Epps: And if there is a long delay between this and our next episode, I don't think it will because we've been detained by immigration authorities, because the administration seems to be engaged in racial profiling which has been greenlighted by the court, and they're not going to apply that to us. So, maybe that's one reason why some people don't care about this decision.
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