This is Bloomberg Law with June Grossel from Bloomberg Radio.

This is Bloomberg Law with June Grossel from Bloomberg Radio.

The Trump administration is facing more than one hundred and fifty cases across the country challenging its actions, and many of the cases involve actions by Elon Musk and DOGE, which has moved swiftly to fire tens of thousands of federal workers, cancel Granson contracts, and generally dismantle the federal government. The administration has contended in court that Musk isn't the head of DOGE and doesn't have authority to make decisions at agencies. But remember when President Trump gave a shout out to Musk during his joint address to Congress this month, I.

The Trump administration is facing more than one hundred and fifty cases across the country challenging its actions, and many of the cases involve actions by Elon Musk and DOGE, which has moved swiftly to fire tens of thousands of federal workers, cancel Granson contracts, and generally dismantle the federal government. The administration has contended in court that Musk isn't the head of DOGE and doesn't have authority to make decisions at agencies. But remember when President Trump gave a shout out to Musk during his joint address to Congress this month, I.

Have created the brand new Department of Government Efficiency Dog. Perhaps you've heard of it. Perhaps Rich is headed by Elon must poison the gallery.

Have created the brand new Department of Government Efficiency Dog. Perhaps you've heard of it. Perhaps Rich is headed by Elon must poison the gallery.

Tonight, Well, Federal Judge Theodore Schwanng remembers and cited that in the first major ruling to find that Musk likely exercised unconstitutional power in orchestrating the Trump administration's efforts to shutter the US Agency for International Development. Joining me is constitutional law expert Michael Dorf, a professor at Cornell Law School, Mike. USAID was the first agency that Musk took his chainsaw to remind us what happened.

Tonight, Well, Federal Judge Theodore Schwanng remembers and cited that in the first major ruling to find that Musk likely exercised unconstitutional power in orchestrating the Trump administration's efforts to shutter the US Agency for International Development. Joining me is constitutional law expert Michael Dorf, a professor at Cornell Law School, Mike. USAID was the first agency that Musk took his chainsaw to remind us what happened.

Musk and the Dose people went into USAID and they canceled a very large percentage of the contracts that USAID had with partner organizations throughout the world. They also displaced the existing leadership and Secretary of State Marco Rubio assumed control of USAID, and they gutted the staff so that a great many people were placed either on leave or outright fired with very little time to adjust. Us also actually tweeted that USAID was effectively dead right, So this was an effort by those who essentially kill an agency created by Congress.

Musk and the Dose people went into USAID and they canceled a very large percentage of the contracts that USAID had with partner organizations throughout the world. They also displaced the existing leadership and Secretary of State Marco Rubio assumed control of USAID, and they gutted the staff so that a great many people were placed either on leave or outright fired with very little time to adjust. Us also actually tweeted that USAID was effectively dead right, So this was an effort by those who essentially kill an agency created by Congress.

The judge found that Musk and his team likely violate the Constitution in multiple ways. Let's talk first about the appointment's clause issue. Explaining the appointments clause issue.

The judge found that Musk and his team likely violate the Constitution in multiple ways. Let's talk first about the appointment's clause issue. Explaining the appointments clause issue.

The Constitution sets out how officers of the United States are appointed, so called principal officers, who are people who have a whole lot of responsibility. So think about a cabinet level secretary must be nominated by the President and it's confirmed by the Senate. There are also what the Constitution calls inferior officers who exercise considerable power, but under the supervision of a prince officer, and they can also be appointed via that same mechanism of presidential nomination and Senate confirmation. But the Constitution says that alternatively, for an inferior officer, Congress confessed the authority to make appointments either in the president alone the first of law, or in the heads of departments essentially cabinet secretaries. What the judge said was that Musk is exercising at least the power of inferior officer, probably the power of a principal officer. But it doesn't matter which he is, because he wasn't appointed in conformity with either procedures. He was not nominated by the President and confirmed by the Senate. He was apparently appointed by the president. But remember the appointment's cause says that can only be a mechanism for inferior officers if Congress authorizes it, and Congress did not authorize this. Congress didn't even create those dose as a creation solely of President Trump.

The Constitution sets out how officers of the United States are appointed, so called principal officers, who are people who have a whole lot of responsibility. So think about a cabinet level secretary must be nominated by the President and it's confirmed by the Senate. There are also what the Constitution calls inferior officers who exercise considerable power, but under the supervision of a prince officer, and they can also be appointed via that same mechanism of presidential nomination and Senate confirmation. But the Constitution says that alternatively, for an inferior officer, Congress confessed the authority to make appointments either in the president alone the first of law, or in the heads of departments essentially cabinet secretaries. What the judge said was that Musk is exercising at least the power of inferior officer, probably the power of a principal officer. But it doesn't matter which he is, because he wasn't appointed in conformity with either procedures. He was not nominated by the President and confirmed by the Senate. He was apparently appointed by the president. But remember the appointment's cause says that can only be a mechanism for inferior officers if Congress authorizes it, and Congress did not authorize this. Congress didn't even create those dose as a creation solely of President Trump.

Administration had said that Musk isn't the real head of DOZE and doesn't have the power to make these kinds of decisions. But the judge cited Trump's statements about Musk and Musk's comments and social media posts to demonstrate that quote he has firm control over DOGE.

Administration had said that Musk isn't the real head of DOZE and doesn't have the power to make these kinds of decisions. But the judge cited Trump's statements about Musk and Musk's comments and social media posts to demonstrate that quote he has firm control over DOGE.

That's right. It's essentially holding that. Even though at one point or another the administration has tried to claim that Musk is just an advisor, he was in fact exercising the power of the head of DOGE. Musk has claimed that he is the President in his address to the Joint Session of Congress referred to him that way. He's referred to him that way in other statements. And so you can't just evade the appointment's clause by having somebody the de facto principle or imperial officer without triggering the requirements of the clause.

That's right. It's essentially holding that. Even though at one point or another the administration has tried to claim that Musk is just an advisor, he was in fact exercising the power of the head of DOGE. Musk has claimed that he is the President in his address to the Joint Session of Congress referred to him that way. He's referred to him that way in other statements. And so you can't just evade the appointment's clause by having somebody the de facto principle or imperial officer without triggering the requirements of the clause.

So the judge also found that this push to dismantle USAID, which was created by Congress, likely violated the separation of powers principles.

So the judge also found that this push to dismantle USAID, which was created by Congress, likely violated the separation of powers principles.

Yeah, so this is the other key point of the constitutional ruling. The Constitution refers to agencies, but leads to Congress the prerogative to create and destroy agencies, and the administration seems to have recognized this in another context. So with respect to the Department of Education, which President Trump has said he'd like to close. Secretary McMahon has been taking efforts to reduce its footprint, but even she acknowledges that she can't dismantle the Department of Education on her own. That would require an Act of Congress. Here, by contrasts, Musk and to some extent, Trump have effectively said they are dismantling USAID and they can't do that, right. It's up to Congress to destroy the agencies it creates. They haven't literally white out USAID. But if Congress creates an agency and then the executive branch essentially guts it, that's the equivalent. That's how the judge ruled. In any event, what is.

Yeah, so this is the other key point of the constitutional ruling. The Constitution refers to agencies, but leads to Congress the prerogative to create and destroy agencies, and the administration seems to have recognized this in another context. So with respect to the Department of Education, which President Trump has said he'd like to close. Secretary McMahon has been taking efforts to reduce its footprint, but even she acknowledges that she can't dismantle the Department of Education on her own. That would require an Act of Congress. Here, by contrasts, Musk and to some extent, Trump have effectively said they are dismantling USAID and they can't do that, right. It's up to Congress to destroy the agencies it creates. They haven't literally white out USAID. But if Congress creates an agency and then the executive branch essentially guts it, that's the equivalent. That's how the judge ruled. In any event, what is.

The practical effect of the judge's order when you know, as you said, as he said, the USAID has effectively been eliminated.

The practical effect of the judge's order when you know, as you said, as he said, the USAID has effectively been eliminated.

Well, I want to distinguish between the appointment's clause issue and the separation of powers issue. With respect to the appointment's clause, the judge stayed his ruling for a brief period because he acknowledged that if the decisions that were effectively taken by Musk are now ratified by actual USAID officials, then that would render must the facto and de Joor a mere advisor, in which case there would not be an appointment's clause violation, or at least not one that leads to invalidation of the underlying actions with respect to the separation of powers argument. However, the effect is to basically, on a going forward basis, they can't dismiss anybody else. The judge didn't give the plaintiffs everything they wanted, but one thing he crucially did do was making an order that it has an impact agency wide. The government had said, well, whatever you do, limit your remedy to the specific plaintiffs who filed, and the judge of well, I can't do that because if you look at the caption, the plaintiffs who filed are so called dough plaintiffs. That is there, you know, pseudonymized John Doe's one through I don't remember exactly how many there are. And the risk would be that if you gave relief just to these particular plaintiffs, some of whom have been suspended, some of whom have been fired, then you're going to reveal their identities and they'll be subject to reprisalm So the short of it is that the administration can't make further cuts to USAID. Some of the personnel will be put back in their jobs, but all of this, of course, is going to be subject to an appeal, which the administration has said.

Well, I want to distinguish between the appointment's clause issue and the separation of powers issue. With respect to the appointment's clause, the judge stayed his ruling for a brief period because he acknowledged that if the decisions that were effectively taken by Musk are now ratified by actual USAID officials, then that would render must the facto and de Joor a mere advisor, in which case there would not be an appointment's clause violation, or at least not one that leads to invalidation of the underlying actions with respect to the separation of powers argument. However, the effect is to basically, on a going forward basis, they can't dismiss anybody else. The judge didn't give the plaintiffs everything they wanted, but one thing he crucially did do was making an order that it has an impact agency wide. The government had said, well, whatever you do, limit your remedy to the specific plaintiffs who filed, and the judge of well, I can't do that because if you look at the caption, the plaintiffs who filed are so called dough plaintiffs. That is there, you know, pseudonymized John Doe's one through I don't remember exactly how many there are. And the risk would be that if you gave relief just to these particular plaintiffs, some of whom have been suspended, some of whom have been fired, then you're going to reveal their identities and they'll be subject to reprisalm So the short of it is that the administration can't make further cuts to USAID. Some of the personnel will be put back in their jobs, but all of this, of course, is going to be subject to an appeal, which the administration has said.

It will take, even if they're put back in their jobs. The judge gave Rubio what fourteen days to decide whether to permanently close the agency's headquarters.

It will take, even if they're put back in their jobs. The judge gave Rubio what fourteen days to decide whether to permanently close the agency's headquarters.

Right, so, the President and the Secretary of State, where it's agency lodge within the State Department, do have considerable discretion about how to run and even structure an agency where Congress doesn't say exactly what you have to do. And so that's part of what the judge is doing here. He's saying that you can't completely close it, but you do have some considerable discretion, and I'm going to wait until you exercise that discretion and see, you know, whether you've done so in a way that at least preserves the core of what Congress set up this agency to do.

Right, so, the President and the Secretary of State, where it's agency lodge within the State Department, do have considerable discretion about how to run and even structure an agency where Congress doesn't say exactly what you have to do. And so that's part of what the judge is doing here. He's saying that you can't completely close it, but you do have some considerable discretion, and I'm going to wait until you exercise that discretion and see, you know, whether you've done so in a way that at least preserves the core of what Congress set up this agency to do.

This decision, obviously is limited to USAID. It's the first time that or it's the most direct ruling to date that Musk's roll violates the Constitution. Does this decision have any impact outside of USAID?

This decision, obviously is limited to USAID. It's the first time that or it's the most direct ruling to date that Musk's roll violates the Constitution. Does this decision have any impact outside of USAID?

Yes, the principle that the judge applied would apply to all of the things that Musk is doing with respect to the entire federal government. Right, So there's no difference in principle between Musk's unlawful appointment with respect to USAID on the one hand, versus all the other agencies that he's been going around and making decisions with respect to. But of course other judges might reach a different conclusion on the appointment's clause question. And even if they reach the same conclusion, there is this pretty big loophole that the judge allows for cabinet level officials or other personnel within the agencies who are actually properly appointed to ratify the decisions that Musk has made, so that they can render him advisory in the way that the administration has sometimes claimed he is after the fact and thereby avoid you know, the judicial and validation of everything that Musk and DOGE have done.

Yes, the principle that the judge applied would apply to all of the things that Musk is doing with respect to the entire federal government. Right, So there's no difference in principle between Musk's unlawful appointment with respect to USAID on the one hand, versus all the other agencies that he's been going around and making decisions with respect to. But of course other judges might reach a different conclusion on the appointment's clause question. And even if they reach the same conclusion, there is this pretty big loophole that the judge allows for cabinet level officials or other personnel within the agencies who are actually properly appointed to ratify the decisions that Musk has made, so that they can render him advisory in the way that the administration has sometimes claimed he is after the fact and thereby avoid you know, the judicial and validation of everything that Musk and DOGE have done.

This is an example of how DOGE is moving so fast that by the time these go through the courts, the damage has been done.

This is an example of how DOGE is moving so fast that by the time these go through the courts, the damage has been done.

Yeah, I think that's right. I mean, you know, Musk comes from the move fast and break things worldview, and you know that works in the business world, and you know, apparently it works pretty well with respect to government. Also, it's always easier to just destroy than to create. And even if a court says after the fact what you've done is illegal, if a lot of the people who were unlawfully fired have in the meantime taken new jobs or decided that they don't want to work in an environment in which they could be fired again, but this time lawfully, then you have effectively gotten most of what you wanted, even though you broke the law in doing so.

Yeah, I think that's right. I mean, you know, Musk comes from the move fast and break things worldview, and you know that works in the business world, and you know, apparently it works pretty well with respect to government. Also, it's always easier to just destroy than to create. And even if a court says after the fact what you've done is illegal, if a lot of the people who were unlawfully fired have in the meantime taken new jobs or decided that they don't want to work in an environment in which they could be fired again, but this time lawfully, then you have effectively gotten most of what you wanted, even though you broke the law in doing so.

Coming up next on the Bloomberg Law Show, I'll continue this conversation with Professor Michael Dorf of Cornell Law School. Is the Trump administration defying court orders and what can judges do about it? I'm June Grosso. When you're listening to Bloomberg, there are more than one hundred and fifty cases pending against the Trump administration from Maryland to California, setting up multiple tests of executive power that may ultimately land in the Supreme Court. Some judges have already called out the Trump administration for not following their orders. President Trump has not yet openly defined a court order and says he won't, but he continues to complain about judges. Listen to how he answered the question in an interview on Fox yesterday.

Coming up next on the Bloomberg Law Show, I'll continue this conversation with Professor Michael Dorf of Cornell Law School. Is the Trump administration defying court orders and what can judges do about it? I'm June Grosso. When you're listening to Bloomberg, there are more than one hundred and fifty cases pending against the Trump administration from Maryland to California, setting up multiple tests of executive power that may ultimately land in the Supreme Court. Some judges have already called out the Trump administration for not following their orders. President Trump has not yet openly defined a court order and says he won't, but he continues to complain about judges. Listen to how he answered the question in an interview on Fox yesterday.

I never did defy a court order, and you wouldn't in the feud. No, you can't do that. However, we have bad judges. We have very bad judges, and these are judges that shouldn't be allowed. I think at a certain point you have to start looking at what do you do when you have a rogue judge.

I never did defy a court order, and you wouldn't in the feud. No, you can't do that. However, we have bad judges. We have very bad judges, and these are judges that shouldn't be allowed. I think at a certain point you have to start looking at what do you do when you have a rogue judge.

That was just hours after the Chief Justice rebuked Trump for calling for the impeachment of a judge. I've been talking to constitutional law professor Michael Dorf of Cornell Law School. There are court fights before judges around the country overdoze burrowing into federal agencies, you know, staff cuts and canceling contracts, and some judges are finding that the administration might not be complying with their orders. Judge also up in Sent Francisco last week issued a preliminary injunction requiring the administration to rehire probationary employees at six agencies, almost twenty five thousand federal workers while the legal suit is pending, and on Monday, he ordered the Justice Department to explain what was going on based on news reports that the probationary workers were being rehired and then placed on administrative leave. This is not allowed by the preliminary injunction he wrote, for it would not restore the services the preliminary injunction intends to restore. That's just one example. The freezing funds is another example that the administration is either ignoring or skirting or delaying complying with judicial orders.

That was just hours after the Chief Justice rebuked Trump for calling for the impeachment of a judge. I've been talking to constitutional law professor Michael Dorf of Cornell Law School. There are court fights before judges around the country overdoze burrowing into federal agencies, you know, staff cuts and canceling contracts, and some judges are finding that the administration might not be complying with their orders. Judge also up in Sent Francisco last week issued a preliminary injunction requiring the administration to rehire probationary employees at six agencies, almost twenty five thousand federal workers while the legal suit is pending, and on Monday, he ordered the Justice Department to explain what was going on based on news reports that the probationary workers were being rehired and then placed on administrative leave. This is not allowed by the preliminary injunction he wrote, for it would not restore the services the preliminary injunction intends to restore. That's just one example. The freezing funds is another example that the administration is either ignoring or skirting or delaying complying with judicial orders.

Yeah, and that is a very very serious issue. Another example is the administration's apparent violation of the judges order in the case involving over Twitter people who are sent to El Salvador by a pretty clearly unlawful invocation of the Alien Enemies Act. The administration, i think, is playing a little bit of a game. That is, in social media posts and elsewhere, they are asserting essentially a power to ignore judaical orders. But in actual court filings and statements they have almost invariably claimed that they are complying, but they do so with you know, somewhat flimsy reasons, right, you know, just to give the example again from the migrants case, right, they say, well, we complied with the written order, but not with the oral order because an oral order isn't really an order. In other cases they say, well, we need more time, and so to the extent that there's like a sliver of a silver lining, I guess I'm glad that they're they at least feel the need to pretend to be complying when speaking in open court, because it strikes me that we would be in an even worse constitutional crisis if a Department of Justice lawyer stood up in open court and said to the judge, make me you know, and then the President basically said, well, you know, even the US marshals who are supposed to enforce judicial orders are part of the Justice Department, and I've instructed my Attorney General not to have them enforce the judicial orders.

Yeah, and that is a very very serious issue. Another example is the administration's apparent violation of the judges order in the case involving over Twitter people who are sent to El Salvador by a pretty clearly unlawful invocation of the Alien Enemies Act. The administration, i think, is playing a little bit of a game. That is, in social media posts and elsewhere, they are asserting essentially a power to ignore judaical orders. But in actual court filings and statements they have almost invariably claimed that they are complying, but they do so with you know, somewhat flimsy reasons, right, you know, just to give the example again from the migrants case, right, they say, well, we complied with the written order, but not with the oral order because an oral order isn't really an order. In other cases they say, well, we need more time, and so to the extent that there's like a sliver of a silver lining, I guess I'm glad that they're they at least feel the need to pretend to be complying when speaking in open court, because it strikes me that we would be in an even worse constitutional crisis if a Department of Justice lawyer stood up in open court and said to the judge, make me you know, and then the President basically said, well, you know, even the US marshals who are supposed to enforce judicial orders are part of the Justice Department, and I've instructed my Attorney General not to have them enforce the judicial orders.

Let's hope we never get to that point. And the judge in the case involving the Venezuelans who were deported is still waiting for the same information that he asked the government for on Monday, the exact time the planes took off, the exact time they landed, when the Venezuelans were out of US custody. I mean, it's been tooth and nail trying to get the information from the government to see if they actually ignored his court order, which it appears they did.

Let's hope we never get to that point. And the judge in the case involving the Venezuelans who were deported is still waiting for the same information that he asked the government for on Monday, the exact time the planes took off, the exact time they landed, when the Venezuelans were out of US custody. I mean, it's been tooth and nail trying to get the information from the government to see if they actually ignored his court order, which it appears they did.

Yeah. I mean the New York Times yesterday published their own analysis based I guess on you know, aviation records that made pretty clear that at least one of the flights didn't take off until after the written order was in effect, which, you know, if that's true, then even on the administration's account, they violated the order.

Yeah. I mean the New York Times yesterday published their own analysis based I guess on you know, aviation records that made pretty clear that at least one of the flights didn't take off until after the written order was in effect, which, you know, if that's true, then even on the administration's account, they violated the order.

And they're also using on the third plane, they're using this argument that it isn't covered by the Alien Enemies Act, so it doesn't count. Have other administrations acted like this with court orders, you know, not openly defying them, but not really complying with them either.

And they're also using on the third plane, they're using this argument that it isn't covered by the Alien Enemies Act, so it doesn't count. Have other administrations acted like this with court orders, you know, not openly defying them, but not really complying with them either.

You can point to situations in which administrations have not exactly bent over backwards to comply with the letter of judicial orders. There are certainly cases in which administrations at least seem to try to comply but were on abo because of resource or time constraints. I can't think of an administration that was so uniformly hostile to judicial orders and at the same time was asserting that it had the power to disregard what the court's told to do. You know, the events that we think about in this context are pretty scary moments in American history. So there's a story that's told about President Andrew Jackson, who was unhappy with the ruling of the Supreme Court in one of the Cherokee removal cases and reportedly said John Marshall, meaning, the Chief Justice of the United States has made his decision. Now let's see him enforce it. By the way, he probably never actually said that, but it's a good story. There were this is not at the federal level, but at the state level during the desegregation era, after Brown against Portovichi, there was so called massive resistance. You see a similar phenomenon throughout much of the country in response to some of the Supreme Court's school prayer rulings. And then at the federal level, there was a genuine worry during the Nixon administration that when the Supreme Court ordered him to turn over the secret tapes that he had made in the White House to the special prosecutor, that he might not comply. Now in the end, he did comply, and that in short order, led to the end of his presidency. But this is a recurring theme in American constitutionalism, and it's because, as Alexander Hamilton wrote in Federalist number seventy eight. The judiciary is what he called the least dangerous branch, but it's also least powerful branch. Unlike Congress, it lacks the power of the purse, and unlike the presidency, it lacks the power of the sword. And so ultimately the law and compliance with the law depends on good faith efforts by those in government who do control believers of power to actually accept that there is authority in other branches of government. I'm not convinced that President Trump or the people working for him have that kind of a commitment to the rule of law.

You can point to situations in which administrations have not exactly bent over backwards to comply with the letter of judicial orders. There are certainly cases in which administrations at least seem to try to comply but were on abo because of resource or time constraints. I can't think of an administration that was so uniformly hostile to judicial orders and at the same time was asserting that it had the power to disregard what the court's told to do. You know, the events that we think about in this context are pretty scary moments in American history. So there's a story that's told about President Andrew Jackson, who was unhappy with the ruling of the Supreme Court in one of the Cherokee removal cases and reportedly said John Marshall, meaning, the Chief Justice of the United States has made his decision. Now let's see him enforce it. By the way, he probably never actually said that, but it's a good story. There were this is not at the federal level, but at the state level during the desegregation era, after Brown against Portovichi, there was so called massive resistance. You see a similar phenomenon throughout much of the country in response to some of the Supreme Court's school prayer rulings. And then at the federal level, there was a genuine worry during the Nixon administration that when the Supreme Court ordered him to turn over the secret tapes that he had made in the White House to the special prosecutor, that he might not comply. Now in the end, he did comply, and that in short order, led to the end of his presidency. But this is a recurring theme in American constitutionalism, and it's because, as Alexander Hamilton wrote in Federalist number seventy eight. The judiciary is what he called the least dangerous branch, but it's also least powerful branch. Unlike Congress, it lacks the power of the purse, and unlike the presidency, it lacks the power of the sword. And so ultimately the law and compliance with the law depends on good faith efforts by those in government who do control believers of power to actually accept that there is authority in other branches of government. I'm not convinced that President Trump or the people working for him have that kind of a commitment to the rule of law.

So while we're on this case before Judge Boseburg over the Venezuelan deportees, President Trump yesterday on truth Social said that Judge Boseburg should be impeached, and then Chief Justice John Roberts before noontime came out with his statement two lines saying that this is not what impeachment is for. You know, the appellate process should be followed. What's your take on the Chief Justice at this moment. I mean, he doesn't often comment outside out of his opinions are outside of speeches that he makes even and doesn't say much in the speeches usually what do you make of him sort of stepping.

So while we're on this case before Judge Boseburg over the Venezuelan deportees, President Trump yesterday on truth Social said that Judge Boseburg should be impeached, and then Chief Justice John Roberts before noontime came out with his statement two lines saying that this is not what impeachment is for. You know, the appellate process should be followed. What's your take on the Chief Justice at this moment. I mean, he doesn't often comment outside out of his opinions are outside of speeches that he makes even and doesn't say much in the speeches usually what do you make of him sort of stepping.

In so what you said is true. Although he has in the past, once during the first Trump administration, another time in response to something that Chuck Schumer said, made statements like this. He also in his end of year report decried personal attacks on judges as undermining the integrity of the legal process. So this is something that he has cared about. I think there's no question that the timing here is not coincidental. You know, there are a number of ways to read this. I mean I read this rather straightforwardly as a chief Justice trying to tamp down this kind of talk. I don't think it's really necessary because although there have been articles of impeachment introduced in Congress against some of the judges who ruled against the Trump administration, those aren't going anywhere. Right. That is to say, you need super majority in the Senate actually to remove a judge, and you're not going to get that with the number of seats Democrats hold. But I do think that this was an attempt to push back not just on the talk of impeachment, but also on some of the personalization that you see from Trump and some of his allies. You know, another way who read it this is more cynical. It's not my view, but I've seen this is that this is John Roberts sending a signal to Donald Trump saying, Hey, you don't need to get all excited about the individual judges. You could win in the courts of appeals or maybe at the Supreme Court. So calm down, and you know, come here, maybe we'll take care of you again. I don't think that's what's going on here, but you know, if you recall at the President's speech before the Joint Session of Congress, right, he actually goes up to Roberts and, you know, basically thanks him for the decision and the immunity case last year. I don't think Roberts was happy about that, but a cynic might say, oh, sure, yeah, this is a kind of two way relationship.

In so what you said is true. Although he has in the past, once during the first Trump administration, another time in response to something that Chuck Schumer said, made statements like this. He also in his end of year report decried personal attacks on judges as undermining the integrity of the legal process. So this is something that he has cared about. I think there's no question that the timing here is not coincidental. You know, there are a number of ways to read this. I mean I read this rather straightforwardly as a chief Justice trying to tamp down this kind of talk. I don't think it's really necessary because although there have been articles of impeachment introduced in Congress against some of the judges who ruled against the Trump administration, those aren't going anywhere. Right. That is to say, you need super majority in the Senate actually to remove a judge, and you're not going to get that with the number of seats Democrats hold. But I do think that this was an attempt to push back not just on the talk of impeachment, but also on some of the personalization that you see from Trump and some of his allies. You know, another way who read it this is more cynical. It's not my view, but I've seen this is that this is John Roberts sending a signal to Donald Trump saying, Hey, you don't need to get all excited about the individual judges. You could win in the courts of appeals or maybe at the Supreme Court. So calm down, and you know, come here, maybe we'll take care of you again. I don't think that's what's going on here, but you know, if you recall at the President's speech before the Joint Session of Congress, right, he actually goes up to Roberts and, you know, basically thanks him for the decision and the immunity case last year. I don't think Roberts was happy about that, but a cynic might say, oh, sure, yeah, this is a kind of two way relationship.

When I saw that, I thought, I bet Roberts is cringing inwardly, you know, having a president thank you for a decision.

When I saw that, I thought, I bet Roberts is cringing inwardly, you know, having a president thank you for a decision.

Well, I mean there was that brief flash of Amy Conny Barrett's face when he did that. She was standing right next to Roberts, and she did seem to be cringing.

Well, I mean there was that brief flash of Amy Conny Barrett's face when he did that. She was standing right next to Roberts, and she did seem to be cringing.

This could end up being a really tough time for the judiciary.

This could end up being a really tough time for the judiciary.

There's a fire hose of illegality coming out of the White House. But I do think that the fundamental issue in all of these cases is the extent to which the administration is going to comply with the judicial orders.

There's a fire hose of illegality coming out of the White House. But I do think that the fundamental issue in all of these cases is the extent to which the administration is going to comply with the judicial orders.

Well, we'll keep our eye on the case involving Judge Boseburg. He's given the government one more day to give him the information about the plane flights. Thanks so much for joining me today, Mike. That's Professor Michael Dorf of Cornell Law School coming up next on the Bloomberg Law Show. Trump is making an emergency appeal to the Supreme Court over his executive order seeking to restrict automatic birthright citizenship. But what's the emergency. I'm June Grosso and this is Bloomberg. President Donald Trump is asking the Supreme Court to intervene on an emergency basis for the third time in his second administration. Trump is asking the court to let him partially enforce his executive order seeking to restrict automatic birthright citizenship, a longstanding constitutional right. But the administration is not asking the court to directly consider the constitutionality of his executive order, instead focusing on the power of judges to issue nationwide injunctions. Joining me is an expert in federal courts and jurisdiction, Amanda Frost, a professor at the University of Virginia Law School. Trump is asking the Supreme Court to let him partially enforce his executive order to restrict automatic birthright citizenship. What is he asking for.

Well, we'll keep our eye on the case involving Judge Boseburg. He's given the government one more day to give him the information about the plane flights. Thanks so much for joining me today, Mike. That's Professor Michael Dorf of Cornell Law School coming up next on the Bloomberg Law Show. Trump is making an emergency appeal to the Supreme Court over his executive order seeking to restrict automatic birthright citizenship. But what's the emergency. I'm June Grosso and this is Bloomberg. President Donald Trump is asking the Supreme Court to intervene on an emergency basis for the third time in his second administration. Trump is asking the court to let him partially enforce his executive order seeking to restrict automatic birthright citizenship, a longstanding constitutional right. But the administration is not asking the court to directly consider the constitutionality of his executive order, instead focusing on the power of judges to issue nationwide injunctions. Joining me is an expert in federal courts and jurisdiction, Amanda Frost, a professor at the University of Virginia Law School. Trump is asking the Supreme Court to let him partially enforce his executive order to restrict automatic birthright citizenship. What is he asking for.

Yes, that's fascinating. What he's asking for is for the court to limit the injunctive release in the cases to just the parties in the cases. So, these cases have been brought by various different groups on behalf of their members. I brought on behalf of individuals who are expecting a child in the coming months and fit within the group of people that would be arguably denied citizenship under the order. States as well have food on behalf of their citizens, and these courts, I think three of them have issued what's called nationwide or universal injunctions to tell the government you can't enforce this executive order against anyone, not against the parties to the case, but also not against anyone else in the United States. So in bringing the case to the Supreme Court, the government's not conceding that the injunction is appropriate us to the parties. It's not like giving away that issue. But it's also not really fighting that issue. It's asking the Supreme Court in its emergency docket to narrow the injunction so that it applies just to the parties. And they argue that states shouldn't be allowed to sue on behalf of their citizens, So they're trying to make it the only people who would get relief and who wouldn't be subject to the order are the named plaintiffs individuals in the case, and everyone else in America whout a child would be subject to the order.

Yes, that's fascinating. What he's asking for is for the court to limit the injunctive release in the cases to just the parties in the cases. So, these cases have been brought by various different groups on behalf of their members. I brought on behalf of individuals who are expecting a child in the coming months and fit within the group of people that would be arguably denied citizenship under the order. States as well have food on behalf of their citizens, and these courts, I think three of them have issued what's called nationwide or universal injunctions to tell the government you can't enforce this executive order against anyone, not against the parties to the case, but also not against anyone else in the United States. So in bringing the case to the Supreme Court, the government's not conceding that the injunction is appropriate us to the parties. It's not like giving away that issue. But it's also not really fighting that issue. It's asking the Supreme Court in its emergency docket to narrow the injunction so that it applies just to the parties. And they argue that states shouldn't be allowed to sue on behalf of their citizens, So they're trying to make it the only people who would get relief and who wouldn't be subject to the order are the named plaintiffs individuals in the case, and everyone else in America whout a child would be subject to the order.

So does that make sense to have it apply to just the name plaintiffs, one rule for this plaintiff and another rule for the rest of the country.

So does that make sense to have it apply to just the name plaintiffs, one rule for this plaintiff and another rule for the rest of the country.

No, it doesn't, And here's my explanation for why it doesn't. So universal or nationwide injunctions can be issued in a variety of cases. I think at times they're not appropriate. I think they should be a remedy that's used sparingly. Often, Relief just to the name parties to the suit the plaintiffs is perfectly appropriate. There are, however, exceptions, and this case is a good example of a case that should be an exception. It should be an exception one because of a chaos it would create, two because it's not administrable, that is, who would be covered and who isn't would be very difficult to determine. And three because we should not ask each and every person who's having a child in the United States, and it would be everyone this would apply to have to prove their lineage in order for their child to be recognized as a citizen and something other than an undocumented immigrant.

No, it doesn't, And here's my explanation for why it doesn't. So universal or nationwide injunctions can be issued in a variety of cases. I think at times they're not appropriate. I think they should be a remedy that's used sparingly. Often, Relief just to the name parties to the suit the plaintiffs is perfectly appropriate. There are, however, exceptions, and this case is a good example of a case that should be an exception. It should be an exception one because of a chaos it would create, two because it's not administrable, that is, who would be covered and who isn't would be very difficult to determine. And three because we should not ask each and every person who's having a child in the United States, and it would be everyone this would apply to have to prove their lineage in order for their child to be recognized as a citizen and something other than an undocumented immigrant.

Tell us more about the chaos it would create.

Tell us more about the chaos it would create.

You can imagine, of course, if people were to have children or risk of having children that wouldn't be citizens or deemed a citizens by the government for some period of time until the Supreme Court resolved the issue. You can imagine how difficult that would be for those families. US citizenship is essential for getting certain benefits like healthcare of Medicaid type benefits, as well as qualifying for other welfare benefits at the state or federal level. The citizenship is essential for getting a passport for the child and other identity documents. You can imagine parents who are here legally, because the order applies to parents who are in the United States legally but temporarily, which can mean for years. On student visas or work visas. Those parents might want to leave the country with their two or three month old child and visit grandparents, for example, and yet they couldn't do so. The child would have no ability to get a passport that would allow them to enter at the US again, and even though the parents are legally free to come and go, their child wouldn't be. Their child would be born undocumented, which means at risk of being deported when we have a president who says to port them all, So why not a newborn baby? And then you can imagine couples who are in this situation again, maybe perfectly legally present here for years, applying for Green cars cards, able to stay. They might have a real incentive now to flee to a state across a border which this rule doesn't apply to, or to try to find some other way of getting status for their child. Finally, the federal government's not prepared to administer this. The federal immigration laws all assume a child born on US soil as a citizen, so there's no visa status for these children. And yet the US government wants to impose this rule without being ready, So that's the chaos. The administrability point comes from. These are associations suing on behalf of the association and its members. The administration is trying to limit it just to like certain individuals in the association, but that's not how the law works. The associations the party, so all of their members should be covered. Who are members, you know, that would be a difficult determination to make, and so who would actually get the benefit of this order wouldn't be clear if the government were to win. And finally, the idea of everybody in the United States having this uncertain status for their child until the Supreme Court rules is violating constitutional rights, you know, potentially for a year plus or at least potentially also rushing the Supreme Court to decision. And this is not a case in which the government has a strong argument for the need for immediate ability to implement its own policy, which is a break from about a century of precedent, so it's asking to do something completely new. Also, in its executive order, it said we won't even implement this order for thirty days. It imposed to stay on itself. So it's hard to see why it's such an emergency, right now to immediately implement this absolutely brand new legal rule.

You can imagine, of course, if people were to have children or risk of having children that wouldn't be citizens or deemed a citizens by the government for some period of time until the Supreme Court resolved the issue. You can imagine how difficult that would be for those families. US citizenship is essential for getting certain benefits like healthcare of Medicaid type benefits, as well as qualifying for other welfare benefits at the state or federal level. The citizenship is essential for getting a passport for the child and other identity documents. You can imagine parents who are here legally, because the order applies to parents who are in the United States legally but temporarily, which can mean for years. On student visas or work visas. Those parents might want to leave the country with their two or three month old child and visit grandparents, for example, and yet they couldn't do so. The child would have no ability to get a passport that would allow them to enter at the US again, and even though the parents are legally free to come and go, their child wouldn't be. Their child would be born undocumented, which means at risk of being deported when we have a president who says to port them all, So why not a newborn baby? And then you can imagine couples who are in this situation again, maybe perfectly legally present here for years, applying for Green cars cards, able to stay. They might have a real incentive now to flee to a state across a border which this rule doesn't apply to, or to try to find some other way of getting status for their child. Finally, the federal government's not prepared to administer this. The federal immigration laws all assume a child born on US soil as a citizen, so there's no visa status for these children. And yet the US government wants to impose this rule without being ready, So that's the chaos. The administrability point comes from. These are associations suing on behalf of the association and its members. The administration is trying to limit it just to like certain individuals in the association, but that's not how the law works. The associations the party, so all of their members should be covered. Who are members, you know, that would be a difficult determination to make, and so who would actually get the benefit of this order wouldn't be clear if the government were to win. And finally, the idea of everybody in the United States having this uncertain status for their child until the Supreme Court rules is violating constitutional rights, you know, potentially for a year plus or at least potentially also rushing the Supreme Court to decision. And this is not a case in which the government has a strong argument for the need for immediate ability to implement its own policy, which is a break from about a century of precedent, so it's asking to do something completely new. Also, in its executive order, it said we won't even implement this order for thirty days. It imposed to stay on itself. So it's hard to see why it's such an emergency, right now to immediately implement this absolutely brand new legal rule.

The Solicitor General wrote the Acting Solicitor General that universal injunctions have reached epidemic proportions since the start of the current administration. District courts have issued more universal injunctions and tros during February twenty twenty five alone than through the first three years of the Biden administration. Yeah, there's a good reason for that.

The Solicitor General wrote the Acting Solicitor General that universal injunctions have reached epidemic proportions since the start of the current administration. District courts have issued more universal injunctions and tros during February twenty twenty five alone than through the first three years of the Biden administration. Yeah, there's a good reason for that.

Well, I mean in my first response, and by the way, it was a response that I gave during the Obama administration and during the Biden administration as well, which is first that nationalide injunctions are not appropriate in every case, I would agree, but second that they are response to sweeping executive orders that attempt to rewrite massive areas of law without federal legislative involvement, without congressional involvement, and that's particularly been the case for immigration. Obama did it too, Biden did it too. But when these executives issue sweeping executive orders seeking to rewrite federal law for everyone, I think it is not inappropriate to think, at least some of the time, courts likewise have the power to enjoin the nationwide and it's not one court in joining them for the nation for all time. It can be immediately appealed and is up to a three judge pellate court and appealed again of the Supreme Court. And frankly, that's how our legal system has always worked, so it is not shocking to me to watch this happen. Should they be issued in every case now? And do courts sometimes overuse them? Certainly I would agree in fact with the Birthright Citizenship Order, I think my view, but I feel pretty confident that the nationwide injunction shouldn't apply to the provision of the executive Order asking agencies to promulgate or come up with rules and policies to implement it, as long as they don't actually start implementing those policies. I see no harm in having them work on those policies within the agency, And in fact, that might enlighten us as to how this would actually work in practice, which I think would be very harmfulotic for the American people. So it might be useful to see just how broadly the State Department would apply the rule to refuse passports to people's children. I'll repeat that everybody is going to have to prove their lineage in order to get their child to passport, and that might be harder than people realize.

Well, I mean in my first response, and by the way, it was a response that I gave during the Obama administration and during the Biden administration as well, which is first that nationalide injunctions are not appropriate in every case, I would agree, but second that they are response to sweeping executive orders that attempt to rewrite massive areas of law without federal legislative involvement, without congressional involvement, and that's particularly been the case for immigration. Obama did it too, Biden did it too. But when these executives issue sweeping executive orders seeking to rewrite federal law for everyone, I think it is not inappropriate to think, at least some of the time, courts likewise have the power to enjoin the nationwide and it's not one court in joining them for the nation for all time. It can be immediately appealed and is up to a three judge pellate court and appealed again of the Supreme Court. And frankly, that's how our legal system has always worked, so it is not shocking to me to watch this happen. Should they be issued in every case now? And do courts sometimes overuse them? Certainly I would agree in fact with the Birthright Citizenship Order, I think my view, but I feel pretty confident that the nationwide injunction shouldn't apply to the provision of the executive Order asking agencies to promulgate or come up with rules and policies to implement it, as long as they don't actually start implementing those policies. I see no harm in having them work on those policies within the agency, And in fact, that might enlighten us as to how this would actually work in practice, which I think would be very harmfulotic for the American people. So it might be useful to see just how broadly the State Department would apply the rule to refuse passports to people's children. I'll repeat that everybody is going to have to prove their lineage in order to get their child to passport, and that might be harder than people realize.

And looking at you know whether the Supreme Court will take it or not. In the past, there have been a couple of justices who have questioned the wisdom of these nationwide injunctions. Justice Neil Gorsich call them cosmic injunctions. He also said sometimes judges seek to govern the whole nation from their courtrooms. Justice Elena Kagan has said, it just can't be right that one district judge can stop a nationwide policy in its tracks and leave it stop for the years that it takes to go through the normal process. So they've questioned it several times, but they've never taken up the issue. Do you think they might take it up in this case?

And looking at you know whether the Supreme Court will take it or not. In the past, there have been a couple of justices who have questioned the wisdom of these nationwide injunctions. Justice Neil Gorsich call them cosmic injunctions. He also said sometimes judges seek to govern the whole nation from their courtrooms. Justice Elena Kagan has said, it just can't be right that one district judge can stop a nationwide policy in its tracks and leave it stop for the years that it takes to go through the normal process. So they've questioned it several times, but they've never taken up the issue. Do you think they might take it up in this case?

Two or three justices have certainly criticized them. A couple things about this one. The Supreme Court itself is should a nationwide junction In the fairly recent past in the travel ban case one of the early iterations of the travel ban, and they left in place but after adjustment, a nationwide injunction. So if these are unconstitutional and wrong, the Supreme Court has been doing it until recently. They can rethink it, but they should acknowledge they seem to think it was fine within recent memory. The second point is that saying that maybe they're overused and we should have some criteria for how to use them, I think is appropriate. Saying they're unconstitutional and should never be used, I think is at odds with long standing equitable principles and the constitutional role of courts. And written an article on this where I talked about the factors that a court should take into account before it issues such an injunction, and that it should gather evidence on that and should be cautious. If the Supreme Court wanted to say something like that, I'd be all for it. If there's a suggestion that they're inappropriate in all cases, I would repeat my point that that's at odds with long standing equitable practices and would really undermine the role of courts. And I'll give an example imagining an executive branch official who issues an order that says, in order to vote, you must have a passport. That's the only ID document will accept for you to vote, because you've got to be a citizen, and so to vote you to have a passport. Well, of course, many Americans don't have a passport, and that would be illegal to limit voting to those people. But then imagine the views. Well, there's no nationwide injunctions, and we won't certify a class because that's hard to do. So the elections two weeks away. Those of you who can sue between now and then, you get to vote even if you don't have a passport. Everyone else, you know, well, you'll get justice eventually when the Supreme Court hears it.

Two or three justices have certainly criticized them. A couple things about this one. The Supreme Court itself is should a nationwide junction In the fairly recent past in the travel ban case one of the early iterations of the travel ban, and they left in place but after adjustment, a nationwide injunction. So if these are unconstitutional and wrong, the Supreme Court has been doing it until recently. They can rethink it, but they should acknowledge they seem to think it was fine within recent memory. The second point is that saying that maybe they're overused and we should have some criteria for how to use them, I think is appropriate. Saying they're unconstitutional and should never be used, I think is at odds with long standing equitable principles and the constitutional role of courts. And written an article on this where I talked about the factors that a court should take into account before it issues such an injunction, and that it should gather evidence on that and should be cautious. If the Supreme Court wanted to say something like that, I'd be all for it. If there's a suggestion that they're inappropriate in all cases, I would repeat my point that that's at odds with long standing equitable practices and would really undermine the role of courts. And I'll give an example imagining an executive branch official who issues an order that says, in order to vote, you must have a passport. That's the only ID document will accept for you to vote, because you've got to be a citizen, and so to vote you to have a passport. Well, of course, many Americans don't have a passport, and that would be illegal to limit voting to those people. But then imagine the views. Well, there's no nationwide injunctions, and we won't certify a class because that's hard to do. So the elections two weeks away. Those of you who can sue between now and then, you get to vote even if you don't have a passport. Everyone else, you know, well, you'll get justice eventually when the Supreme Court hears it.

Right.

Right.

That shows you, in that fairly extreme example, that sometimes the deprivation of constitutional rights for a short period itself can be accomplish the executive's goal, even if its actions are clearly unconstitutional and eventually struck down. That's what I believe birthright citizenship is right. It's a constitutional right, long recognized, lung assumed to exist by all the branches of government. And yet the government wants to start stripping citizenship of people until the Supreme Court addresses it a year from now. That year of citizenship lass is itself an enormous constitutional problem in violation.

That shows you, in that fairly extreme example, that sometimes the deprivation of constitutional rights for a short period itself can be accomplish the executive's goal, even if its actions are clearly unconstitutional and eventually struck down. That's what I believe birthright citizenship is right. It's a constitutional right, long recognized, lung assumed to exist by all the branches of government. And yet the government wants to start stripping citizenship of people until the Supreme Court addresses it a year from now. That year of citizenship lass is itself an enormous constitutional problem in violation.

Chief Justice Roberts set April fourth as a deadline for responses from the states and the others that are challenging Trump's order on birthrights citizenship. Does that indicate that it's not considered an emergency since you know he's waiting till next month.

Chief Justice Roberts set April fourth as a deadline for responses from the states and the others that are challenging Trump's order on birthrights citizenship. Does that indicate that it's not considered an emergency since you know he's waiting till next month.

Yes, that certainly because the court doesn't view it as an emergency. And it's hard for me to see how it's an emergency when, as I mentioned at the asset, the executive order itself didn't immediately put it into effect.

Yes, that certainly because the court doesn't view it as an emergency. And it's hard for me to see how it's an emergency when, as I mentioned at the asset, the executive order itself didn't immediately put it into effect.

We're two months into the administration and this is the third time they've been at the Supreme Court.

We're two months into the administration and this is the third time they've been at the Supreme Court.

Well, yeah, I mean that's their policy as a flood the zone policy right to like just bombard the world with their legal changes. I will say, I don't think they're handling it.

Well, yeah, I mean that's their policy as a flood the zone policy right to like just bombard the world with their legal changes. I will say, I don't think they're handling it.

Well.

Well.

I agree, it's totally disruptive to the people that are affected, to the court system, to the lawyers and advocates on the other side. But the government is doing a terrible job of litigating these cases. They're sloppy, they've got typos, the quality is poor. The lawyers can't answer the judges questions. I mean, they're a limited shop, right like, they don't have endless numbers of employees, and they too seem to be adslee flailing under this, including making this questionable choice to bring this as their third case before the court.

I agree, it's totally disruptive to the people that are affected, to the court system, to the lawyers and advocates on the other side. But the government is doing a terrible job of litigating these cases. They're sloppy, they've got typos, the quality is poor. The lawyers can't answer the judges questions. I mean, they're a limited shop, right like, they don't have endless numbers of employees, and they too seem to be adslee flailing under this, including making this questionable choice to bring this as their third case before the court.

Well see if the court rejects this or if there are four justices who want to take the case. Thanks so much for being on the show. That's Professor Amanda Frost at the University of Virginia Law School. And that's it for this edition of The Bloomberg Law Show. Remember you can always get the latest legal news on our Bloomberg Law podcasts. You can find them on Apple Podcasts, Spotify, and at www dot bloomberg dot com slash podcast Slash Law, And remember to tune into The Bloomberg Law Show every weeknight at ten pm Wall Street Time. I'm June Grosso and you're listening to Bloomberg

Well see if the court rejects this or if there are four justices who want to take the case. Thanks so much for being on the show. That's Professor Amanda Frost at the University of Virginia Law School. And that's it for this edition of The Bloomberg Law Show. Remember you can always get the latest legal news on our Bloomberg Law podcasts. You can find them on Apple Podcasts, Spotify, and at www dot bloomberg dot com slash podcast Slash Law, And remember to tune into The Bloomberg Law Show every weeknight at ten pm Wall Street Time. I'm June Grosso and you're listening to Bloomberg