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Justice Alito’s concerns about the expansive use of nationwide injunctions set the stage for a pivotal Supreme Court deliberation. With an analysis of the current judicial climate from the courtroom, we discuss how this case could redefine the authority of district courts over executive actions. Featuring perspectives from legal experts, former government officials, and the ACLJ’s fight to restore constitutional clarity, this episode provides an in-depth look at one of America’s most critical legal battles.
SPEAKER 04 :
Today on Sekulow, we have breaking news as the Supreme Court hears oral argument on the limits of nationwide injunctions.
SPEAKER 03 :
Keeping you informed and engaged, now more than ever, this is Sekulow. We want to hear from you. Share and post your comments or call 1-800-684-3110. And now your host…
SPEAKER 04 :
Welcome to Seculo. The Supreme Court is currently still going with an oral argument on this case, which will speak to the issue of these nationwide injunctions issued by district court judges. And this is an issue that we’ve seen pop up. We’ve seen it more aggressive in these first hundred days than we’ve maybe ever seen it before in the history of a presidency in the courts. And what you’re seeing is on full display the way that the Supreme Court justices are questioning the Solicitor General and the other respondents about how they are going to come to an outcome on whether or not these nationwide injunctions should continue. And we’re going to have very good analysis here. Jordan is in the courtroom right now with the Attorney General of West Virginia, J.B. McCuskey. And we will be joined in the next segment of the broadcast by Chief Counsel of the ACLJ, Jay Sekulow, to talk about the oral argument that is still ongoing. These oral arguments are normally slated for one hour, as was this one. We are now past the two-hour timeline. It started at 10 a.m. Eastern. And now we’re in the noon hour. And one more respondent is is just taken the podium to be questioned by the justices. So we will get analysis as this is ongoing, as we are joining you right now. But what we’ve heard so far is very, very fascinating. And you’re going to want to stick with us in the next segment, especially as Jay joins us to break down what he hears it with his long history with the court and arguments and how you can maybe read things from the justices or maybe don’t read things from the justices. And we will see where this goes. But it has been very interesting as well. When some of these justices have actually spoken out in the past against nationwide injunctions, including Justice Kagan, who had given a talk, was interviewed on a panel at Northwestern Law School back in 2022 during the Biden administration. And she even had criticism. this issue talking about how in recent years the district courts have issued nationwide injunctions and this has happened under both Trump and Biden administrations and she brings up the issue of forum shopping and she brings up the issues that when it’s against a Republican president they go to the Northern District of California and when it’s against a liberal president, they go to Texas and they get these nationwide injunctions to block national policy at one district court in one location. And that’s what we’re seeing. But it is ramped up, especially during the Trump years. You’ve seen, I believe the tally is 67% of all nationwide injunctions that have been issued have been against President Trump while he is president, both in his first term and now during this second term. But we’re not only analyzing this. The reason that Jordan is in the courtroom right now and we’re hoping that he gets out of the hearing and is able to make it to our broadcast studio in D.C. to join us and give his input on how it seemed in the room. But we are there with the attorney general of West Virginia because we are representing D.C. West Virginia in our amicus brief that we filed in this case. And so it’s very important. This is the work of the ACLJ pushing back against these nationwide injunctions because one district court, one judge should not have the power to consistently block policy of the President of the United States before there’s ever briefing on the merits, before you get to any sort of details in the case, they just put an end to it. And as Justice Kagan pointed out in 2022, and then it’s tied up for years as it goes through the legal process. That’s what we’re pushing back against today. And that’s what is before the Supreme Court right now. Join us in the next segment as Jay Sekulow, Chief Counsel of the ACLJ, joins us to break it down. We’ll be right back. Welcome back to Sekulow, executive producer Will Haines. And I’m joined now by the ACLJ’s chief counsel, Jay Sekulow, about this case that the Supreme Court is hearing today that gets to the heart of these nationwide injunctions that have been issued by district courts across the country to block policies of the president. Now, these have happened under both Democrat and Republican presidents, but they always seem to tick up during the Trump years. As a matter of fact, the statistic is around 67% of all nationwide injunctions that have been issued have been against President Trump, either during this 100-plus days or the four years prior during his first term. But I wanted to get your read on just the… First blush looking at this hearing today, it got contentious at times, but what was your takeaway as someone who has been before that court many times?
SPEAKER 06 :
Well, and of course we represent West Virginia in this case. The underlying action is the birthright citizenship issue where the administration through an executive order narrowed the scope of who would qualify for birthright citizenship. That is what’s not before the court, though, the actual underlying action. And that, I think, is going to have a very difficult time. But what is before the court is these universal injunctions. And look, conservatives have been guilty of going after these two. I mean, famously, the state of Texas. But here’s the reality. And I think the universal injunctions are dangerous for the exact reasons that Justice Alito was pointing out. Now, It’s very close, Will. I could tell you just by the oral arguments. It is a very closely divided court. It’s not clear where Justice Court, the argument’s still going on right now. Jordan’s inside the court with the Attorney General of West Virginia, J.B. McCuskey. So they’re inside the courtroom right now. But I’ve been able to listen to it and read transcripts as they were coming. And here’s the reality. The reality is this is, I think, looking at right now a 4-4 case. and Gorsuch could be the determining factor here. He did not seem very sympathetic to President Trump’s Solicitor General Sauer.
SPEAKER 04 :
I wanted to play that bite from Justice Alito that you mentioned. This is bite nine, where he’s talking about the problem of these nationwide injunctions and even starts off by saying, let’s put out of our minds the merits of this. As you’re referencing, many people in the media are pointing to the underlying eo that got this this hearing today but that’s not what it’s about is specifically about these injunctions issued by district court judges that put a nationwide hold on the policy of the president so let’s play this bite and then i want to get your reaction to it bite nine so what do you say about the the practical problem so put out of let’s put out of our minds the merits of this
SPEAKER 05 :
just look at the the abstract question of universal injunctions what is your response to what some people think is the practical problem and the practical problem is that there are 680 district court judges and they are dedicated and they are scholarly and i’m not impugning their motives in any way but you know sometimes they’re wrong And all Article III judges are vulnerable to an occupational disease, which is the disease of thinking that I am right and I can do whatever I want. Now, on a multi-member appellate court, that is restrained by one’s colleagues. But the trial judge sitting in the trial judge’s courtroom is the monarch of that court. of that realm and there are situations in which trial judges uh the the president does something it could be president trump could be president biden could be president obama the the trial judge says this is unlawful and i’m gonna i’m gonna order uh i’m gonna enjoin it and i’m so i’m convinced i’m right so i’m not going to stay the injunction and then an application is made to the court of appeals to stay the injunction the court of appeals gives it the back of the hand and then the case comes immediately to us in the context of an emergency application.
SPEAKER 04 :
That is the Justice Samuel Alito breaking that down, what is kind of the core problem of these nationwide injunctions. And I just wanted to get your thoughts, especially as it relates to how he points out the 680 district court judges. It reminds me of an argument you made before the Supreme Court talking about the local district attorneys going after the president. And when you have this this broad swath of officials that can be weaponized in some way against the agenda of a president if they are able to pursue it in this manner.
SPEAKER 06 :
Well, no, you’re exactly correct. And by the way, if we carry the day and win this case, Justice Alito, what he wrote is going to be the basis of the opinion. Because what he pointed out is exactly what, and you’re right, I pointed out in representing President Trump before the Supreme Court, when the local DAs were going after him, I said, you know what, there’s Twenty eight hundred or whatever the number was of local district attorneys, any one of them can start doing this. And that’s exactly the problem. So this idea that the injunction goes that long is dangerous. But here’s the that broad. Here’s the bottom line. The bottom line is we have to fight and we’re continuing to do that. And now at the Supreme Court.
SPEAKER 04 :
And as you mentioned, it did seem, and you’ve also cautioned before, that you never can really tell what’s going on in one of the justices’ minds just by the questioning. Maybe some of them that were very aggressive against even the underlying policy, but once again… At the end of the day, this isn’t about the executive order. It is about the limits of these district court judges. So it even if you were to take just the sentiment from the panel of justices up there, it could seem as though because of the way they went after that underlying issue that. they may automatically you can’t ever imagine getting them on board with this but then you hear statements like that from justice kagan just back in 2022 where she was cautioning at a northwestern law school event about a district judge being able to stop nationwide policy in its tracks that while they may not like the underlying issue which isn’t before the court today You could see some sort of narrow or limiting of a district court’s power in nationwide injunctions from surprising members of the court, depending on how it shakes out.
SPEAKER 06 :
Yeah, again, the underlying issue here, the birthright citizenship there, whenever they touch it, did not seem like it. There was many justices that were in favor of what the Trump administration has done. Of course, being in favor of it doesn’t mean it’s not constitutional. So they’re going to eventually have to address that issue. But as it relates to the injunction, this really should not be a liberal conservative issue. This really should be an issue of how do we want an unelected district court judge in Spokane impacting… you know, a citizens of the state of Georgia or North Carolina or Texas or New York. I mean, it’s ridiculous.
SPEAKER 04 :
If the Supreme Court were to not issue a broad order or rule on this in a way, are there any avenues through even Congress, which does have some authority in creating courts and things of that nature, could legislate some sort of restraints or is that strictly up to the judicial branch once it’s there?
SPEAKER 06 :
No, I mean, no. Congress determines the jurisdiction of the courts. I mean, the courts in that sense are an act of, you know, it’s a constitutional appointment under Article 3. But yes, but the jurisdictional issues are the federal rules of civil procedure, for instance. These are all adopted by congressional actions and are put in place. across the country as an action of Congress. So, of course, Congress can curtail jurisdiction of courts. That would be a long way to go. And I’m not sure there would be enough support to actually do it. But it’ll be very it’s a close call. I think we’re right that the injunction should not be universal in scope, but it’ll be it’s going to be very close at the court.
SPEAKER 04 :
Thank you for joining us today and for that analysis. It is always fascinating to see these hearings, especially ones that have such broad reaching impact on literally anything that a president can do. Not just President Trump, but any president that follows him as we see this. This is truly a historic case and we are representing Trump. the state of West Virginia. Jordan is there in the courtroom with the Attorney General of West Virginia, who you’ve seen on this broadcast many times, J.B. McCuskey. And we hope to be joined by Jordan shortly, as soon as this hearing wraps up. And he’s able to make it to our broadcast studio in Washington, D.C., which is not too far from the Supreme Court. We’ll hopefully get his analysis of what it was like inside that courtroom as it got testy sometimes between the some of the justices and the solicitor general. And we will see where this all goes as we look forward. forward and we’ll be getting a ruling on this issue from this court but thank you for joining us today that was jay seculo chief counsel of the aclj and his analysis of that court which he has been before many times if you’re new to the aclj Go to ACLJ.org and support our work as we fight to put limits and put an end to this nationwide injunction issue as we represent the state of West Virginia today before the Supreme Court on our brief. And we will hopefully be joined by Jordan shortly. But coming up, we have Secretary of State Mike Pompeo joining us with his insight as someone who was in the executive branch, who has had to face some of these nationwide injunction issues before and how he sees this play out and how that affects the ability for the executive branch to put forward their foreign policy and other things. We’ll be right back on Sekulow. You won’t want to miss it. Welcome back to Sekulow. Will Haines, executive producer here. And I’m joined by Secretary of State Mike Pompeo, our senior counsel for global affairs. And we are still talking about this issue that’s before the Supreme Court today. And this is the issue of district court judges issuing nationwide injunctions against policies of the president. And without ever getting to the merits of it and putting this policy on hold, limiting the ability of the executive branch to govern, And I wanted to get Secretary Pompeo’s take on this because as someone who has served in the executive branch, you’ve seen firsthand how the opposition can forum shop, get a judge in the district court to put a nationwide injunction on the policies of the administration. And that’s really what is at the heart of this issue today. And so I just wanted to get from you, Secretary Pompeo, how hard is it to govern with the threat of a party disagreeing with you on a political matter or a policy matter that rushes to court to try and block almost any action that the administration decides to move forward with?
SPEAKER 08 :
Well, what you’ve described is exactly right, and I come at this from a practitioner’s standpoint. We’ll leave the legal arguments to others for the moment, but from a practitioner’s standpoint, It’s the case that any party that feels like they’re aggrieved, any citizen, any organization that feels like they’re aggrieved can find a friendly district court somewhere in the country and show up, make a claim, and then really put sand in the gearbox for an entire nation to deny an executive the space to do what it is He was elected to do. This, by the way, cuts both ways. It’s been the case that conservative organizations have gotten to try to do this when there were liberal presidents as well. What we’re really talking about is what is… What is it that the executive should have the capacity and space to do? And can it be the case that several hundred district court judges that are trial judges, fact-determining judges, can just literally with a single stroke of a pen shut down an entire nation’s executive branch? That can’t possibly be the outcome that the framers intended. And it is a practitioner, someone who was dealing with these things, Some of the foreign policy issues stem from executive orders as well, right? It impacted our ability to actually deliver what it was the American people had asked us to do. And I saw this with great frequency, certainly in the first year and a half or two of the Trump administration. First Trump administration, we saw it on immigration, but we saw it more broadly as well. It made life more difficult for all of us.
SPEAKER 04 :
Well, and as you point out as well, that this shouldn’t be really an issue that is divisive politically. And there are people in the media that will try to point out what the underlying executive order on this one is that that has gotten it to the Supreme Court. But at the end of the day. That’s not really the question at hand. The question at hand is what you’re referring to and what even Justice Kagan brought up as recently as 2022 when she was on a panel at Northwestern Law School and talking about that. As you said, it cuts both ways. It’s happened under President Biden or President Trump and that these the trend line is increasing as well. our politics get more divisive of using the court in this way. And that the fact-finding judge, as you said, the district court judge can actually put on hold for years as the legal process plays out a policy decision or a political decision by the administration that someone doesn’t agree with. So I feel like if it would be presented fairly, That this should be an issue that most Americans, especially if they want their president to succeed, if you’re not in favor of the policies of President Trump, but yet you keep seeing this continue, then it’s just as likely to ramp up under the next administration and really harms all Americans because those in power cannot govern when the district court judges have that much power to block the policies and forward movement of an administration.
SPEAKER 08 :
Well, you’ve hit on a really important point there. First of all, I do want to remind folks, there are hundreds of these district court judges. Literally, we can have dozens and dozens of district courts. By the way, putting nationwide injunctions that conflict with each other. The level of chaos that can ensue when a single district court has the capacity to shut down the entire nation on a particular issue with a stroke of a pen, it is dysfunctional. As a practitioner, it doesn’t work. The second thing that you hit on that’s important is the time element of this. They put this nationwide injunction in place through a stroke of a pen, and it can go for years. Presidents are elected for precisely 48 months. Once the injunction is lifted, it can then take months to actually get the policy in place and implement it. You can essentially prevent a policy from ever happening. being put into effect with a single district court judge for the entirety of a presidential term. That just is dysfunctional. It can’t possibly be the case of what our founders intended. And this shouldn’t be partisan. This is about the roles and responsibilities of a chief executive. And I’m pretty confident that the Supreme Court, while they may not go all the way in denying district courts this authority, they are going to cabin this capability, this power. in important ways. And I think that’ll be good for all of us. Whatever one’s political views are, I think this will end up being a good thing for the country.
SPEAKER 04 :
I did want to ask this one final question of you before we let you go today. But this is about the trip that President Trump is on in the Middle East and the bold call for both Saudi Arabia and other nations to join the Abraham Accord, something you were pivotal in getting forward during the first presidential term of President Trump. And now we are seeing the push to to expand that and to bring normalized relations between countries that have never had normal relations and had antagonistic and actually many have had war between each other. What is your take on this push? And do you expect that we could see more in an expanded Abraham Accords in the coming months and years?
SPEAKER 08 :
I think it’s very likely when the United States leads, when we put our reputation on the line saying this is a good thing and we ask these nations to do it and then we are good partners with them, they will come to see that recognizing the right of Israel to exist is a pretty straightforward proposition. And, you know, President extended that to the new leader in Syria. Many of us spoken about one day praying that the Iranians would come to see it this way. This is how you get the stability, the peace, the economic prosperity for the region. The basic fundamental right that says Israel is going to exist, I think, is common knowledge and accepted now. No one disputes this. And so it’s time for us to move past these legacy issues and get on with building a stronger, more peaceful and more prosperous region.
SPEAKER 04 :
Thank you, Mr. Secretary, for joining us today for your insight, both as someone who has had to face things like these nationwide injunctions as you served in the executive branch and in many different roles and having to face the the. possibility of trying to have a fight back against courts that are trying to shut down you governing in those roles and also on your insight on the abraham accords uh very very important topic that we are following closely here at the aclj so thank you and we will talk with you next week but folks today is a major day at the supreme court as we told you the justices are hearing the oral argument that is one of the biggest cases that will affect all of us and affect every president and every administration going forward about the power of district court judges to block the policies of a president many of these political policies policy questions not inherently something that a district court would have the authority to put nationwide injunctions on. We represent the state of West Virginia in this case, as we, Jordan is in the courtroom right now, and you can join us at aclj.org, make a tax-deductible donation. We’ll talk to you when we get back.
SPEAKER 03 :
Keeping you informed and engaged, now more than ever, this is Seculo.
SPEAKER 04 :
Welcome back to Seculo. Executive producer Will Haines, as you heard in the first half hour, Jay Seculo, our chief counsel, joined us to break down what he had heard during this oral argument that is still taking place. It began at 10 a.m. Eastern time. Now it is 1230. p.m eastern time and it is still going should be wrapping up soon and jordan seculo is joined by the west virginia attorney general jb mccuskey in the courtroom as they hear the oral argument there we are hoping to get jordan on but as you can tell the argument is still going if not we will have him on tomorrow to break down what he saw inside the courtroom uh at the at the But if you have a question about this, give me a call at 1-800-684-3110, 1-800-684-3110, as we discuss the importance of this day at the Supreme Court, the national implications, the historic implications as it goes forward. And I’ve mentioned this throughout the broadcast from Justice Kagan. And this was at a Northwestern University Law School panel back in 2022. And I want to play it for you because if you didn’t know who it was from, if I was just reading the text, you may think it’s someone from the ACLJ or from another conservative legal organization talking about the dangers and kind of the issues with these nationwide injunctions, but you’re hearing it from a member of the Supreme Court who is hearing arguments today. So I want to go ahead and play this for you from 2022 at Northwestern. This is Byte 11.
SPEAKER 01 :
In recent years, some district courts have issued nationwide injunctions. And this happened in the Trump administration, and it has also happened in the Biden administration. So this has no political tilt to it. But some district courts have very quickly issued nationwide injunctions to stop a policy in its tracks, something um that uh the president um and or congress has determined to be the national policy and it just one district court stops it um and then you combine that with the ability of people to forum shop to go to a particular district court where they think that that will be the result and you look at something like that and you think that can’t be right that one district court whether it’s in You know, in the Trump years, people used to go to the Northern District of California. And in the Biden years, they go to Texas. And it just can’t be right that one district judge can stop a nationwide policy in its tracks and leave it stopped for the years that it takes to go through a normal process.
SPEAKER 04 :
Right there, that ending line of that bite from Justice Kagan. And it just can’t be right that one district judge can stop a nationwide policy in its tracks and leave it stopped for the years that it takes to go through the normal process. That is precisely the issue before the court today. That a district court judge… can stop a policy of the president in its tracks and leave it stopped for years as it goes through the normal process. That’s what we’re fighting against today. That’s why Jordan is there today at the Supreme Court with the Attorney General of West Virginia representing that state and their interests before the Supreme Court in our brief, pointing out that this can’t be right. as Justice Kagan said. Now we will see when the ruling comes out, how this case was interpreted by the justices. But now is the time to push back against this and fight back against this. You can join us at aclj.org. You can become a champion, which is a monthly donor to the ACLJ. That helps us set budgets for the year and continue these fights as we represent states, or we represent individuals, as we had on air yesterday, Zach Knotts, who was arrested in front of an abortion clinic exercising his First Amendment rights. Join us today at ACLJ.org. Donate. We could always use your support and your prayers as we fight these battles, both here at home and abroad. We’ll be right back. Welcome back to Seculo. Executive producer Will Haines here. And I am joined in studio by Professor Harry Hutchison as we continue to talk about this historic day at the Supreme Court. The issue before the court today are these nationwide injunctions being placed on policy issues and executive orders of the president. And this isn’t a new issue. This has only been ramped up, though, in really the last few administrations. And it has affected administrations on both sides. However, we have seen the disproportionate amount of these nationwide injunctions against President Trump, both in his first term, as well as this hundred plus days that we have of the second Trump presidency. And I played in the last segment Justice Kagan from a law school panel that she was on at Northwestern in 2022. And I’ll just give you kind of the nugget from it, Professor Hutchison. And that’s where she even pointed out that we’ve seen district courts in recent years. That’s happened to both the Trump administration’s and Biden administration’s districts. and where they very quickly issue these nationwide injunctions to stop policy in its tracks and she goes on to talk about that they even forum shop and as we’ve seen here that the vast majority of these cases against president trump are california or massachusetts or dc the more liberal areas where they can find a more liberal district court judge but then also you She ends this statement by saying, and it just can’t be right that one district judge can stop a nationwide policy in its tracks and leave it stopped for the years that it takes to go through the normal process. As we see this, that’s exactly what’s happening, which she was talking about in 2022. That’s exactly the issue before the court today.
SPEAKER 02 :
I think that’s precisely correct. I think Justice Kagan is precisely correct. And she’s correct for a number of reasons, not the least of which is the fact that the court record below has not yet been developed. So in other words, you have a single district court judge issuing an injunction based on an incomplete judicial record and saying, hey, I will determine whether or not the executive branch can actually run the government. And it’s imperative that the Supreme Court intervene here. Why? Because over two-thirds of the injunctions issued in U.S. history have been issued against the Trump administration. So there’s something that’s disproportional that’s going on here from a policy perspective. And let me also point out, even though that’s not really before the court, if you actually understand the underlying legal issue and go to the 14th Amendment of the U.S. Constitution, the 14th Amendment is not crystal clear, as some individuals suggest. So it states in impertinent part that all persons born or naturalized in the United States and subject to the jurisdiction thereof are citizens of the United States. And so one of the things that most people emphasize is the first part of that statement, all persons born or naturalized in the United States. They don’t focus on the second part and subject to the jurisdiction thereof. So the point I’m making is there is something with respect to the merits that supports the merits of President Trump’s argument here. And I think our chief counsel, who basically suggested that this is going to be a tough case for President Trump, I think he’s precisely correct. This will be a tough argument to make, but the argument should be allowed to be made In terms of a full blooded judicial hearing, not through an injunctive measure issued by one single judge in Massachusetts or wherever.
SPEAKER 04 :
And that’s precisely the issue before the court today, because at the end of the day, the underlying executive order. that this case reached the Supreme Court on isn’t at hand at all. But that is what many of the justices were trying to make it about. But it could be swapped out with any of the other executive actions that have been enjoined nationally by a district court judge. because the facts are almost the same in all of them basically a judge before ever getting to any sort of merits briefing or any sort of of real robust judicial process are putting a nationwide injunction on it stopping it before it ever even is heard by the court and so while that was the angle of many of the justices trying to almost litigate the merits of the underlying EO before that’s even before the court. That’s not the question at hand today. It shows you that even the nationwide injunction issue, because of already pre-thought maybe or issues that could go along with the fact that that’s what the underlying EO is, could introduce bias against this issue of nationwide injunction. Now, we will see how it plays out. And it was a very robust hearing. It just ended about 10 minutes ago. So all that aside, though, you as a professor of law. You could see many, many hypotheticals in law school exam questions, I’m sure, based upon this very issue in and of itself, because even as Justice Thomas brought up early in the oral argument. Nationwide injunctions aren’t a part of American history for very long. The very first ones, really, I think there is some debate about if there was something in the 40s that could have been considered that. But really, the 1960s is when we first saw these. And he even said America survived its history until the 1960s without these. Why is this necessary now? And I think that is precisely the question. Why? Is the judicial branch able to do this now? And how did we even get here?
SPEAKER 02 :
I think that’s a very good question, and I think the answer is somewhat complex. But let me suggest one possible source of the move toward nationwide injunctions, and that is academics, law schools, and undergraduate schools have changed since the 1960s. And so academics have basically encouraged their students to become revolutionaries. Some of those revolutionary students are now district court judges. They have been revolutionized and their view is they are part of the resistance. They have been weaponized, if you will, against Donald Trump. And so I think at the end of the day, it’s an indictment, if you will, of the academic sector. And one of the things that we should think about seriously, this is outside the parameters of today’s discussion, but we should insist that elite schools in particular be taxed more heavily.
SPEAKER 04 :
And that’s a whole different issue altogether, Professor Hutchison. But this is a historic showdown at the Supreme Court that we’re watching unfold today because it isn’t about the executive order underlying it. As I said earlier, you could almost just plug and play any executive order. This very question could have been presented to the court on a vast array of them. But what you are seeing… is for the first time, to my knowledge, the Supreme Court tackle this issue of nationwide injunctions. And what is the limit of the authority of a district court judge? And there are hundreds of them across the country. that have the power, this appointed judge, unelected, this isn’t the same as a state court judge, which may be elected by the people to represent them. Now, obviously, a state court judge can’t issue a nationwide injunction. These are appointed judges by presidents, confirmed by the Senate, that at some point along the way have acquired the power to completely block the policy enforcement the foreign policy, the executive actions of an entire branch of government And this is what’s before them. It is almost an existential constitutional issue that we’re seeing before the court today as it pertains to how much power these judges have.
SPEAKER 02 :
I think that’s precisely correct. And I would posit that the big problem is the absence of judicial modesty. In other words, judges need to be able to restrain themselves, but judicial modesty, I think, is out of fashion.
SPEAKER 04 :
Folks, as we continue to break this down in the next segment of the broadcast, you can call with your questions, 1-800-684-3110. If you want to talk to me on air, you could leave a comment on any of our social media platforms that we broadcast to, YouTube, Facebook, X, Rumble. We’re there on all of them. But we could really use your support today as we have Jordan in the courtroom with the Attorney General of West Virginia as he is in the Supreme Court of the United States, probably now outside the front of it as that case just wrapped up, that oral argument. But we are fighting back against this judicial overreach as they seek to continue to block every aspect of of the president’s policy. That’s not what we think the district court judges should be doing, and you can stand with us at ACLJ.org. Welcome back to Sekulow. Final segment of the day. And we are pleased to say that we have gotten Jordan on the phone. We are hoping to have him back in our studio. But Jordan, that hearing went a little long today. Give us your thoughts on what you saw in the courtroom as you just left the Supreme Court of the United States.
SPEAKER 07 :
You know, these are, it’s a politically charged times. And I think we’ve been in that situation for a number of years now. It’s not something new for people who’ve been listening into the court since that audio has become, you know, live streaming and available, uh, not just, you know, after the fact or historically. So you’re not just relying on accounts and the idea here that you’ve got what could be either a very straightforward case or a very complicated case. And I think that the easiest way to look at this is should district court judges be able to stop the actions of the executive branch, the president of the United States, because they don’t like the policy interpretation, or do they have to go through a court process? It doesn’t mean that our president gets to do whatever they want, whoever we elect. And that’s obviously, you can’t just look at who the president is now and say, well, I like them, so I want them to have this power, but I don’t want the next president to have this power. At the same time, You have this entire, you know, two hours before the U.S. Supreme Court without the lower courts taking this kind of time. The lower courts who considered this, who issued these nationwide or universal injunctions didn’t take the time that the Supreme Court did today to even consider these issues. These were quick orders done to, again, politically charged orders to prevent the President of the United States from carrying out their function to execute the laws of the United States. I thought that also one of the more arguments that you’re seeing from the other side of this issue. One, you get to look at the state argument and they talk about programs that they administer, but those are programs we all fund through our federal tax dollars. So again, the Medicaid programs that states may, again, have the ability to then carry out their states, but those are all functions that they are involved with the federal government. The second point is you heard from the opposing is that if people here, the federal government decides who is in the United States and who is not, I mean, if you have a green card, if you have a visa, at any time, that can be revoked. You don’t have the same kind of rights as the U.S. citizens. And the argument put forward is, well, we can’t actually have plaintiffs come forward because then they’d be telling the U.S. government that they’re breaking the law. I mean, so we’re at a court of law And we’re protecting people who are saying, well, we can’t come forward because we know we’re violating the law because we’re here illegally. And that would then we could be deported because we’re here illegally. And so then they can’t actually challenge on behalf of a minor. Do you see where this gets out of control very quickly? And I think that is where you have to take out just the issue that was in court today. And I think the court did a pretty good job of trying to get back to that and say, what are the ramifications here? of going forward and just saying this is the new accepted practice in the United States, that district court judges get to decide when to shut down the executive branch from even beginning. I mean, I think that point needs to be underscored, too, that the federal government, when these injunctions are issued, is told not only can you not do what you have the executive order is ordering the federal government and the executive branch to do, you can’t even begin to plan. to try and implement the policy of the President of the United States. So every time one of these delays comes in, they talk about the Trump administration trying to run out the clock. But you think about the idea here is to have a policy of the U.S. government fully implemented doesn’t take a day. And here, just the idea of how it would go into force, they were going to give it at least 30 days. That clock hasn’t started yet. So while the other side of this argument keeps trying to say that this is the administration that wanted to get to the merits of the issue and run out the clock, is in fact running out the clock. And I think that that, again, has to be underscored. You can never predict the Supreme Court over oral arguments. Obviously, they spent a lot of time with the Solicitor General today. That makes sense. since because this issue fundamentally comes down to, again, the court has a way to say here, listen, we can take emergency cases. In fact, this was on an emergency appeal. We can act quickly. So to kind of go before the U.S. Supreme Court and say, we don’t have ways to resolve things in the United States, you know, a constitutional crisis can’t be resolved. Well, we know throughout our history that’s not the case. that they can be resolved within even those 30 days of implementation without telling the federal government they can’t even start the process. So I think that that has to be underscored, too, is that here you’re not just saying you can’t do this. You’re saying you can’t even start working on how you would do it. And so does the bureaucracy itself. And again… I think there’s multiple ways the court can look at it. And we’ll see how this opinion comes down. But it just underscores a kind of climate that we’re living in now where we’re told on the one hand that this is about this executive specifically. And you saw that argument try to be made by the councils here. We represent, of course, the co-council with the state of West Virginia. and the people there. And I think what has to be underscored is that the majority of states in the country are on our side. So when you heard from New Jersey’s argument and the states that joined New Jersey, that is a minority of states in the United States who are saying they are going to suffer some kind of harm if this goes forward. And when they point to the harm, they’re pointing to the administration of our federally funded programs.
SPEAKER 04 :
Jordan, I think also to bring up and just kind of reiterate what you said, we heard the Chief Justice actually raise that, what you said, that, you know, we’re able to act pretty quickly. He even referenced the TikTok case that they were able to address within days of the issue arising. But we’ve also mentioned today on the show that Justice Kagan, as recently as 2022, had talked about it can’t be right that one district judge can stop nationwide policy in its tracks and leave it stop for the years that it takes to go through the normal process. We’ve got about a minute and a half left here, but Do you think really that the opinion hinges on whether or not some of these justices, like Justice Kagan, can separate themselves from the underlying EO that this injunction is related to and look at the issue that is actually before them, which is district court judges issuing these nationwide EOs, stopping a president’s policies in its tracks?
SPEAKER 07 :
Yeah, I think it’s going to be very difficult for those justices. I think it’s a, you know, we moved outside of the court just because of the amount of protesting. And that’s a daily occurrence now here. It’s not just because of one case or one procedural issue before the court. And that’s what is at stake here. I mean, this, again, is bigger than birthright citizenship. This is not the idea of how that is defined or do we look at history and look at the Civil War and the post-Civil War amendments that were put into the Constitution. But it’s procedurally much bigger. If you live in one state, Can the action of one district, can the action of another district court judge stop the entire administration and functioning of law in its tracks? And so, again, we live in a government with co-equal branches, but the judiciary is divided. And so we have, again, we started a district court, we go to the Court of Appeals, and then we go to the U.S. Supreme Court. And you have basically the argument before the court today is, you don’t fix things quick enough. And this case got there within a matter of months. And again, these 30 days, even the government was clear about, the Trump administration was clear about, had not even begun. But again, we’ll get the opinion of the court and we’ll continue the fight. I think this is just the beginning of the fight for the Trump administration to be able to carry out its policies. And again, the will of the people who elect
SPEAKER 04 :
uh our our executive branch leaders like the president united states to carry out the functions of our government thank you so much for jumping on here in the final segment of the broadcast we’ll talk with you more about this when you’re back in studio but folks this is such an important time as you heard from jordan as you heard from jay These are the very core issues of our Constitution and the way our judiciary works and the way our executive branch works. And the ACLJ is fighting back against what these judges are doing. And this won’t be the last historic case we have to take on. Join us today as we fight at ACLJ.org.
