Advisory Opinions - Aliens and Enemies

Episode Date: April 1, 2025

Sarah Isgur and David French review the Trump administration’s latest executive order targeting law firms, the legal challenge against the White House’s invocation of the Alien Enemies Act, and the problems surrounding universal injunctions. The Agenda: —David’s dangerous brush with nature —Trump’s non-strategic executive orders against law firms —Can the courts review a proclamation invoking the Alien Enemies Act? —Is immigration an “invasion”? —OPM ain’t got no standing —Sued for cracking, then sued for packing (in a redistricting case) —The 0-9 prediction on nondelegation case Show Notes: —Executive order against Jenner & Block —Executive order against WilmerHale Advisory Opinions is a production of The Dispatch, a digital media company covering politics, policy, and culture from a non-partisan, conservative perspective. To access all of The Dispatch’s offerings, click here. Learn more about your ad choices. Visit megaphone.fm/adchoices

Ready? I was born ready. Music Music Music Music Music Music

Music Music Welcome to Advisory Opinions. I'm Sarah Isgur, that's David French who just escaped death as a tornado For the Advisory Opinions, I'm Sarah Isgur. That's David French, who just escaped death as a tornado ran through his neighborhood and maybe didn't even get that close. But still, we're happy you're here, David.

Thank you, Sarah. I think it got kind of close, but did not hit us. It dissipated before it hit us. But we had the really exquisitely fun experience of being in the safe room, watching everything unfold with that circulation, you know, the Doppler radar has the little vortex, and it's literally going down the road to our house.

And then you have the really fun experience of the news, of the meteorologist on the news going, saying your street name. And I'm like, yeah, I don't like that. news of the meteorologist on the news going, saying your street name. Oh, that is pretty bad. Yeah. I'm like, yeah, I don't like that. OK, but you had three dogs, two cats in the room. Two dogs and the two cats and the two dogs do not coexist. So the two cats were kind of in another part of the house.

And the two dogs were in the safe room with us, one of them vibrating, like, shaking so much. Wait, David. Yeah. Do you just tell me that your cats were not in the safe room with us, one of them vibrating, like shaking so much. Wait, David, did you just tell me that your cats were not in the safe room? They were in a safe room, not the one the humans and the dogs were in. They were in a room with no interior, no windows, et cetera,

but they were not in the one with the humans and the dogs. That's like Mitt Romney putting the dog on the roof level, David. I don't know. Which we have a totally different perspective on that now, don't we? Because back in the day, that was a scandal and now that's not. I don't know whether it's a scandal. You saved it with they were in a different safe room, though let's be clear,

it must have been the second, like it wasn't as good. You would have been in the best one. Well, you know, it's a critical mass. Did Austin want to be alone with his cats without us because we had grabbed the dogs. So, you know, tough choices had to be made, Sarah, because the dogs and cats are not acclimated to each other. They live in different places.

These are your son's cats and they're your dogs. My son's cats, yeah, yeah. Yeah, okay. Okay. Yeah. Well, he made a choice. He's the cat owner and I judge him actually, not you now. Oh, for sure.

Yeah, it's his call. It's his call. He's a bad person. Okay, I'm glad we all agree that Austin's a bad person. Poor Austin. Poor Austin. Just getting blasted to pieces. Okay, we are going to do a few updates,

few circuit updates, and then get to some Supreme Court oral arguments that I thought were exceptionally interesting this week. But David, two more law firm EOs to discuss here. So to start from the beginning, remember, we start with Covington. Everyone forgets Covington because Covington only has the national security clearances revoked and Covington puts their fingers in their ears and says la la la this isn't happening Please ignore us next up Perkins Cooey Perkins Cooey sues and they get an immediate order blocking the effects of the EO

Paul Weiss is next up. They settle. That's the 40 million pro bono then We've got Jenner and block. Yeah, Jenner and block sues. Then we've got scatting, scatting settles. 100 million. 100 million in pro bono. Yeah, yeah. Coming later, I guess isn't fun. Do you know the 100 million in pro bono was interesting to me on the scatting settlement. Maybe more interesting to me was the agreeing

to hire Skadden fellows that will pursue certain projects that the administration approves of. Skadden fellows notoriously like left-wing projects that Skadden basically pays for them to pursue for, I think it's one year, a one-year fellowship. Like they, you read them and you're like, this is written in a different language. Like even I don't speak,

someone who's pretty bilingual and liberal. So David, it's interesting. We're gonna have these side-by-side tests, right? Paul Weiss says this was an existential threat. Jenner and Block says it isn't. I guess we're gonna find out. Yeah, we'll find out. I mean, you know, what's interesting is

the Paul Weiss existential threat argument combined with the, you know, what's interesting is the Paul Weiss existential threat argument combined with the, you know, they made assertions, who knows how true it is about predatory law firms and all of that stuff. A number of people reached out to me afterwards and like, why are you crediting that Paul Weiss was telling the truth on this? I mean, in the absence of evidence that the guy's engaging in bald-faced lying, the idea

that other law firms would be predatory with a wounded competitor. Sorry, it felt believable. It checks out, guys. It checks out. Oh, I forgot. Wilmer. Sorry, Wilmer. Wilmer also got EO'd.

Wilmer is also contesting theirs in court. So okay, so we have Paul Weiss and Skadden on the settlement side. We have Wilmer and Jenner on the suing side. I'll be honest, for the purposes of our experiment, I'm not counting Perkins-Cooey because they are such a different law firm in how they're set up and their revenue model. So, Perkins-Cooey is like interesting,

but set it aside for our experiment because Wilmer, Hale, Jenner, Skadden, and Perkins-Cooey is like interesting, but set it aside for our experiment because Wilmer, Hale, Jenner, Skadden, and Perkins-Cooey I think are really well situated AmLaw 100 firms. Right, so here's what is interesting to me, Sarah. This is what I'm really looking at because I think the calculation here that say a Skadden or a Paul Weiser making is that even if they win, they lose.

That's right. So even if they win, that the administration will, the idea that clients will feel like they are going with comfort can continue to work with the federal government at the same time that they retain Paul Weiss, I think that might be part of the calculation that even a TRO, even an injunction,

even a permanent injunction may not be as enforceable as you might think, because in some ways, if you're talking about a contractor who is seeking work from the government and they don't get it, and they also retain Paul Weiss on a separate matter, proving that they didn't get a contract from the government because they're with Paul Weiss versus some other element would be really difficult.

That would be tough. So I think there's this kind of calculation that a Paul Weiss and a Skadner making, which is we can't actually fully win this case in the way that you might think that you can actually win this case. And I think that that's probably a lot of their reasoning at this point, would be a permanent injunction enforcing that, especially vis-a-vis the government's relationship with all of the clients that do business with Paul Weiss would be really tough or Skadden would be really tough.

It feels to me that that's the calculus they're making and I think you put it very well. This is kind of a real life experiment. What's going to work out better? Except here's the problem, at least in my mind, as more of these EOs percolate, each one's effect dilutes everyone else's. So if the administration really wanted to stick it to three law firms, I think they could do that incredibly effectively, scarily. I'm obviously against this. I think it's really bad, but I think that's a very doable thing. The problem is you can't do it to 20 law firms.

Because at some point, everyone's going to forget which law firms which they're going to assume all of the AmLaw 20 basically are covered, and it's not going to affect clients' new matter decision making. Right. And so so basically they sort of go into the ether. And so in that case, Wilmer and Jenner and Block will look like they picked the right course when in fact, there was no right course or wrong course. The administration diluted its own effects

for no discernible reason, because they couldn't pick which law firms they actually wanted to punish. Yeah, you raise a great point. The more law firms they actually wanted to punish. Yeah, yeah. You raise a great point. The more law firms that get involved, and the more, it does two things at once. One, it is of course a greater attack on the rule of law, a greater attack on the legal profession,

but interestingly enough, might be less effective the bigger it gets, because one, the predatory circling of the individual law firms becomes much less practical because they're all, it becomes the declaration of independence situation where it's sure we must hang together. We will surely hang separately. But you're pushing all of your enemies to actually help one another when before they didn't want to.

Incredible. Incredible. Exactly. So the more, the bigger this gets, in a weird way, the less likely it is to succeed, the smaller and more focused it is, the more likely they would have been, if he had just stopped after getting the Paul Weiss settlement and then like fought it out

with Perkins-Cooey, as you were saying, which is a different, sort of a different model, you know, that there might be this overhang of intimidation that would still exist, but the fact that he's going firm after firm after firm after firm may dilute the strength of the attack in a weird way. Because if you're a Fortune 500 firm

with bet the company litigation, who always would have hired, let's say, an Amlaw 10, Amlaw 20 level firm, you're not going to be willing to not hire an Amlaw 20 firm. You're just not going to drop down a whole bunch beyond that. Your board isn't going to let you. So the only thing this may have effect on is sort of like lobbying type. You know, there's like lobbying, qua-lobbying, where you're like a registered lobbyist, and then there's litigation lobbying type stuff. Like maybe it'll affect some of those new matter things. But that's true with any change in administration, the law firms that are seen as a

little bit more conservative or a little bit more friendly with this administration always pick up some of those new matters. Right. What you want to do is go in and lobby, you know, the new EPA general counsel or something like you hire a different law firm for that than the one that's going to go into court and sue the EPA quite often. Right. So we'll see once again, I think the administration's making non-strategic choices and just feel good decisions that they pat themselves on the back floor, but will have decreasing effects as time goes on. But we'll see.

All right, David, let's move on to the next update, the Alien Enemies Act. Yeah, this is, you know, we often talk about how, I'm not gonna say we never look at district court decisions. We definitely do look at district court decisions on occasion, but we don't spend a lot of time on district court decisions, in part because often there's just so many of them early on

that tracking them is a virtual impossibility. So it's one reason why we wait until things start to narrow at the courts of appeal. And we're starting to get there now with some of these Trump executive orders. And so we just had a DC Circuit Court opinion. And this is a Circuit Court opinion, essentially upholding... It's denying an emergency motion to stay, but it was a motion to stay brought by the federal government to stay a lower court temporary restraining order that was blocking enforcement

of the Alien Enemies Act and or the President's Alien Enemies Act proclamation. So there was a small number, I believe it's five Venezuelans, filed a lawsuit to challenge the Alien Enemies Act designation for this Venezuelan drug gang, Trindaragua. Okay, is that right? I speak like zilch Spanish, so just forgive me on the pronunciation here. But TDA, we'll just call them TDA. How about that? So calling, saying that here is a Alien Enemies Act

regarding the invasion of the United States by TDA. This was a proclamation March 14th. And so this was the first case really to take a close look at the application of the Alien Enemies Act, take a close look at the history. And what was interesting about this case is so they deny the stay, which means that the temporary restraining order stays in effect. So there's a blocking of the Alien Enemies Act proclamation for these plaintiffs and

for the class. And then the stay was denied, and then there were three concurrent statements. So the stay is denied just in a very brief order, and then you have about 90 pages of concurrent statements. Two of them were particularly interesting. Well, there are two concurrence and one dissent. Judge Walker's dissent was simple,

and Judge Henderson's main concurrence statement was also very interesting. And Judge Henderson, what Judge Henderson did is basically walk through the history and the precedent really regarding one of the key issues here, which is can the courts review a declaration and a proclamation invoking the Alien Enemies Act, or is that just a political question that's beyond the purview of the court?

For example, for those who don't know the difference between a justiciable question where judges can decide versus a political question where it's left to the political branches of government, a classic example of a political question would be a declaration of war. So if Congress declares war, then the courts are not going to enjoin the war, for example. That would be a classic political question. But the question here is, we have no declaration of war, but we have a proclamation declaring that an invasion is underway and

invoking the Alien Enemies Act. So in that circumstance, is this justiciable? And so that was the subject of a very large portion of this concurring opinion. And it was very well done, I think, because it goes back to the conditions for creating, the conditions for drafting and passing the Alien Enemies Act. And it's rooted in the fear of war with France. So in 1798, there was real concern that we were going to get into a shooting war with the revolutionary government in France. This was ultimately developed into a kind of quasi-war, what was known as the quasi-war with France, that was mainly a series of naval battles between early American Navy ships,

French privateers, et cetera. The real concern was, where are we going to war with one of the world's superpowers at that time, France? And this was also when, of course, you know about the Alien and Sedition Acts, and a number of other acts were passed at the same time. The Alien Enemies Act is really the only one to survive intact to the present day.

And it's been invoked just three times, one in the War of 1812, when we fought a superpower in Britain and they burned Washington. World War I, when we fought the superpower, Imperial Germany, and World War II, when we fought two superpowers, Nazi Germany and Imperial Japan.

And now it's being invoked against a Venezuelan drug gang. And so the question really is, there's been two questions that have been front and center around this. One is, is there such a thing as judicial review of this proclamation? And the other one is, even if the proclamation is effective, is there due process? Does due process protect the Venezuelan, the suspected members of TDA? This opinion really spends an awful lot of time on the political question issue. And essentially, the argument here, walking through all of the case law is that, no, this is not just a political question. There's no indication from the statute that it's been removed from judicial review. There's no declaration of war.

The words predatory incursion that go along with invasion, these are words that we can easily know what they mean. What we're talking about is something that is like an armed attack on the United States of America by a foreign power. TDA is not what you would consider to be a foreign power, even if it has some ties to the Venezuelan government. The type of invasion that is talked about, which is migration or drug trafficking.

That's not traditionally an invasion or a predatory incursion in the way that the meaning of the Alien Enemies Act, under the text history and tradition of the Alien Enemies Act, what we're talking about here is a concern of an attack by a hostile foreign power within the conventional meaning of what an invasion is. And so that's essentially the conclusion is,

wait a minute, what are you talking about here? There's nothing from the record to say that this is something that's beyond the purview of the judiciary. And so that's the main concurrence. And then Judge Walker's dissent is really quite simple. It's, no, the government wins and the plaintiffs lose because they sued in the wrong place. You don't sue in D.C.

You got to sue down in Texas where all of this stuff is taking place. And so I found this very interesting because one, because of the history lesson, Sarah, which I think is a very important context here. A very important context. Second thing that I thought was interesting is this is not the first time that there has been a decision, it's not the first time that there's been an effort to invoke alien enemies over immigration.

You go to a Ninth Circuit case from the 1990s where a number of states had sued the federal government to try to coerce the federal government into declaring an invasion, which would then give additional tools and powers to states to deal with immigration. In that circumstance, the court said, no, no, no, courts can't declare an invasion. That's beyond our purview. But it did not hold that a decision by a political branch to declare an invasion was beyond judicial review. So this is one aspect of the controversy that is really going to the political

question, can courts review the president's determination that this is an invasion? There's a whole separate question that has come up in the course of some of the other litigation around this, which is, well, even if the president can declare an invasion, does that mean that he can deny due process to the people who are detained? And the district court proceedings that are underway right now with Judge Broaddus, this is where he said he punted on the political question and said, I don't even have to reach it

because I can tell you right now these detainees are entitled to due process. So it's gonna be very interesting as this goes up, Sarah, does, do the courts continue to focus in on, is this a political question, or will they just sort of push that to the side and say whether or not there's an invasion, you're gonna have to do due process?

Which I think part of the reason for the Alien and Enemies Act invocation to begin with was to short circuit legal process as much as they possibly could. And if you require legal process, you're beginning to undermine the justification for making the invasion declaration to begin with. But I thought this was one of the first cases where really seeing a circuit court chew on the core issues rather than dealing with a lot of the side issues of standing or jurisdiction, et cetera.

And what a great group of three to chew, by the way. You have these three judges. Patricia Millett was appointed by Barack Obama. Karen Henderson was appointed by President H.W. Bush. And Judge Walker was appointed by President Trump during the first term. So you've got like kind of a wide span of ideological and time that these guys came on the bench

and they're repeat players for right now. So I think we've talked about this very briefly, maybe before David, about the difference between a motions panel and a merits panel at the circuit court. Basically circuit courts have their own kind of emergency docket panels that get what we would generally think of as emergency docket issues for our current purposes.

And this is the DC Circuit's motions panel right now. So they're getting all of these TRO preliminary injunctions. And so you have these same three people chewing over issues that range in their topic, but are all kind of coming up at the same time, coming up through executive orders. I'm really happy about this. And it makes me think that perhaps motions panels should last longer, often they're one month or something like that,

because I think this has been really helpful too. I do, as David Latt pointed out, you gotta feel a little sorry. Let's see, what did he actually say? Are you feeling overwhelmed and overworked right now? Imagine how DC Circuit judges Karen Henderson, Patricia Millet and Justin Walker must feel right now to say nothing of their poor clerks. Because remember, they're still on merits panels as well. This is like in addition, it's just like extra fun time. So A, and they've had the Office of Special Counsel case, they had the National Labor

Relations case. Yeah, so lots of things coming up through them. David, on the political question issue, it's interesting to me that at least over time, and I mean the 200 plus years time, you've seen the courts initially call something a political question, and then eventually give up on that and start litigating it at congressional districts being like my number one thought. Originally, all congressional district drawing was like, oh, political question, not our problem.

And eventually the courts started wading into that, although they still left partisan gerrymandering as a political question. And we'll be talking a lot about that in a few minutes. Yes. But it seems to me that when it comes to political questions like declaring war, you can still like the underlying question may be a political one, but they will still test it for pretext. Right. So for instance, even in partisan gerrymandering, you can't just wave a magical partisan gerrymandering wand and say, and now the courts won't look into it because I use the special incantation, partisan gerrymandering. No, they're going to ask whether that was pretextual. If it wasn't, then they're not going to look into

whether it was good partisan gerrymandering or whether in fact you could have done a better job of protecting your incumbents. It's just a pretext question. Declaring war, there's no real pretextual analysis, right? You can declare war for whatever reason you want. In that sense, it's like impeachment. You can impeach for whatever reason you want. This is different because it's basically an if-then. If invasion, then special powers.

So it's hard to say that's a political question more so than like. Is it is it an invasion? Like there's an if we can't get to the end. Right. Exactly. I think you can say there's a wide range of latitude for the president to decide what an invasion is or if this is an invasion. But you're going to do that pretextual analysis, basically. Is he just using the magical word invasion? Or could a reasonable elected

representative find this to be an invasion? Also, an interesting part for me, David, about this was a point of disagreement between Henderson and Millett versus Walker. And it may be surprising a little bit. Henderson and Millett, as best I can read, both believe that the government here did not violate the district court's order. Because as they interpret the district court's order, it was simply that he was saying,

you must maintain custody of these people. I.e., you can fly them wherever you want. You just can't like drop them out of the plane basically or like return them to some other country and then be like, and bye, we don't have your number, please don't call us. And so because they removed them to El Salvador where they have control over this prison, they are still in US custody to some extent and therefore they didn't violate the court order. Very different read from Justin Walker. He says, for instance, in Adams v. Vance, we held that when a district court's temporary restraining order threatens intrusions on executive discretion in the field of foreign policy, its order is immediately reviewable. That's the case

here. The district court told the executive branch to immediately stop executing a plan to repatriate or remove Venezuelan nationals pursuant to arrangements that were reached with El Salvador and representatives of the Maduro regime. Not only that, the district court commanded an unprecedented action from the bench. The district court ordered aircraft to be turned around mid-flight in the middle of this sensitive ongoing national security operation. So it's a little bit of just the reverse of what you'd think. Judge Walker is the most conservative judge on that panel. And he's the one saying that they did violate the court order, but that the court order was not so.

You would think that he would be the one being like, no, obviously they didn't violate it. But in fact, anyway, it's like this weird jiu-jitsu with the different members of the panel over what exactly that court order was, which David, I think actually just validates our opinion that like everyone jumping up and down about whether the government violated that court order,

there was too much jumping on both sides, frankly, because three judges can't even agree on what the order was, which to me makes it at minimum, not a very good court order if we can't agree on what the order was, which to me makes it, at minimum, not a very good court order if we can't agree on what the court ordered. You can't ignore something that people can't even agree on what it was. So I think we should put that one in the shelf

for whether they ignored the court order. We still don't know what it was. We'll have another opportunity to analyze whether they violated a court order. I have confidence. But I think you raise a great point, Sarah. If very smart people in good faith reach opposing conclusions about what an order says,

there's a problem here. I'm reminded of the immunity decision from SCOTUS, where we still don't know if bribery is, you can prosecute a president for a bribery in connection with granting a pardon. We have no idea. And you can say that's a problem, but you can't say then that it does or doesn't prosecute a president for a bribery in connection with granting a pardon. We have no idea. And you can say that's a problem,

but you can't say then that it does or doesn't and jump up and down based on that, I guess is my point. And same with this. I was just gonna say one just super fast thing. This is a very important thing, I think. This was not a universal injunction. This was an injunction first for the individual plaintiffs, then for the class of plaintiffs. I think that's how this should be done.

Well. Grant an injunction for the plaintiffs, if you're going to recognize a class, grant an injunction for the class of plaintiffs. That's a different... Yes and no. And by the way, Judge Boasberg is one of the most respected judges in America. So this is not like, oh, this like dumb dumb got the case. That's not at all what I'm saying. He certified a class in a way that I've never seen a class certified, so that it wouldn't just reach the plaintiffs that were actually there. So basically, David, my point is, sorry, let me back up. I would agree with you if he had just done it for the five plaintiffs there and that we were all like, David, my point is sorry, let me back up. I would agree with you if you had just done it for the five plaintiffs there and that

we were all like, ah, but that reasoning should affect other people similarly situated. But that's not actually what happened. There was a very quick, odd class certification, in my view, that made it universal injunctionee through a different door, like we talked about with Judge Costa. Maybe that's a good door. But then if we just move the fight over to the class certification, we haven't accomplished much. You still need to then do a normal class certification process, which is probably not done in the like 30 minutes in a hearing the way this was done. That normally involves a whole bunch of

briefing and there's all these factors and blotty, blah, blah. Second, the TRO problem, right? That it was done through a temporary restraining order instead of injunction, which this is like a whole thing the DC Circuit panel here has to address is do they have jurisdiction because normally they wouldn't over temporary restraining order, but they all agree. Of course they do, which means it shouldn't have been a temporary restraining order in the first place. So when you say this is the way it should be done, I basically only agree in the smallest sense. Well, the class certification element of it is a,

I mean, that is an interesting twist. So what if you were filing, if you're wanting to have a class action, emergency situation, class certification usually is a lengthy process. Can you enter into a preliminary injunction to hold things in place while you go through a normal class certification, or do you need to do the normal class certification

before you do the preliminary injunction if there is irreparable harm, et cetera? No, this is where I'm like, then you need to file your own lawsuit. And I know this is like the full Employment for Lawyers Act argument that I'm making here. But the version of this is like, no, universal injunctions and class actions are just calling the same thing by two different names. It doesn't fix the problem. Because your class all of a sudden is Americans who buy groceries

or something, you know? It becomes very silly. So no, you need to actually have the plaintiffs represented, especially in this case where we're talking about discrete individuals. Everyone knows that they are affected by this because they're in Texas or they're in El Salvador or whatever. It's a class action is for people who basically would have no idea that they need to vindicate their legal rights.

The coupon that you get because you also bought McDonald's coffee in the last 10 years. You don't know the litigation's going on. No clue. These people know theigations going on. No clue. These people know the litigations going on. So yeah, I object to substituting the word class action for universal injunctions and then saying we fix the problem because I think that is as much as if not more ripe for abuse probably. Oh, I think that there are. Although, but David, I thought just to be very clear on where I stand on all this though,

I fell back on my belief that actually there's probably nothing wrong with the universal injunctions. They are temporary. They last for about four months. You can really like which side you got out of this or really dislike it, but it gets solved through the appellate process relatively quickly. It is just setting the status quo before you get to that appellate process. If you lose at the circuit court level, well, then that's now four judges who think that you're not likely to win your case.

And then you can even take that to the Supreme Court. And if they decline to reverse the preliminary injunction status between the parties, oh, that's nine more judges who maybe don't think this is worth dealing with, at least, if not a likelihood of success on the merits problem. So I actually think nationwide injunctions are probably fine. I don't want to tinker with it and make it worse though. And I think the class certification thing could make it worse. Yeah, the class certification element is very interesting because I totally see your point

that there's a way you could just go, there's a class and certify a class with lightning speed or preliminarily certify a class with lightning speed. Imagine the Idaho abortion case where there was a preliminary injunction there and that went all the way to the Supreme Court and there was oral argument on that. Like, oh, it's not it's not a statewide injunction anymore. Now it's a class certification for all people with uteruses. Did we solve it? Did we fix the problem, everyone?

Sarah, I would like to tell you that people with uteruses are women in case you're unclear about that. We're gonna get so many comments on that. You know, that used to be like a funny joke to make and now it's like, you're woke, you're using their language. I was being funny, but by God, let's not do that anymore. You see my point though, like, if the class is just everyone, then we didn't fix much. Yeah, no, I absolutely see your point.

All right, Ninth Circuit time, David. Okay, so this is Ninth Circuit. This is American Federation of Government Employees versus the OPM, the Office of Personnel Management. And this is an emergency motion to stay at District Court's preliminary injunction. By the way, I wish we wouldn't use that language because that always confuses me. Motion to stay. I know. An injunction, which is a kind of stay. So it's like a motion to stay,

a stay. Why can't we just say they're appealing from the preliminary injunction order? But anyway, that's just a little minor. So this was a motion to stay a preliminary injunction order So this was a motion to stay a preliminary injunction order brought by the American Federation of Government Employees that the lower courts had granted a stay to stop a series of layoffs. The majority refuses to grant the motion for a stay, which means the preliminary injunction remains in place. So this keeps the preliminary injunction in place, just like in the DC Circuit case kept the district court preliminary injunction in place. So it's notable mainly because this is an appellate court keeping a district court preliminary injunction in place against a Trump firing of government employees declaration or order.

The only thing that's interesting here is the dissent by Judge Bade that essentially is ain't got no standing guys. This is this American Federation of Government Employees does not have standing here. It's very interesting how many of these cases are coming up on a posture. Essentially it's that because the government is likely to show lack of Article 3 jurisdiction, so then there's not going to be an organizational plaintiff who can make the claim. We've talked about that organizational standing and a very recent advisory opinions. So this is going to be interesting because a lot of these disputes that are coming up where everyone is really focused on the core merits, a lot of these are going to end up

being decided on side issues like standing. They're going to be decided on side issues like jurisdiction, or maybe they might be decided on something that isn't a side issue like due process. Due process is rarely a side issue. It's a core constitutional concern, but it isn't the merits of, for example, the striking down or upholding the alien enemy proclamation. So you have to pay really careful attention to these cases. They're going to mean, they're not always going to mean the same thing that you would

get from a headline that says Trump administration wins or plaintiffs win. You always have to ask why. Why are they winning? And so a lot of these cases are going to be decided on these ancillary issues. But this is one. We have another. We have a Ninth Circuit case upholding a district court injunction. Very little reasoning upholding it. Very little reasoning dissenting from that, but it's rooted in standing.

All right. I'm super pumped. We had two oral arguments at the Supreme Court. And David, one of them, the oral argument was really fun. I think the decision will be fascinating. The other one, maybe the oral argument wasn't as interesting, but the decision's going to be so we'll treat those as such. Okay.

We're going to start with the first one. This is the once and future Louisiana redistricting case. So I want to be clear. This stems from the 2020 census. Yes. And redistricting. It's 2025, census. Yes. And redistricting. It's 2025, David. Yes.

And that's going to be relevant to this because at some point, we're five years into redistricting or rather we're only five years away from having to do this again. And surely there has to be a better way than this. All right. I predict we'll have a 2029 redistricting case on the 2020 census.

Just throwing that out there. All right, so in 2020, Louisiana's population, about a third of their population was black. They get six congressional districts. Originally they draw one majority black district. They are, of course, sued for violating section two. Remember we've talked about cracking and packing, both of which violate section two? This is a cracking one, a vote dilution case

that you diluted the black voters' votes by, you know, sprinkling them into the other five districts so that they couldn't elect a candidate of their choice. The district court holds on a preliminary injunction that the plaintiffs are likely to succeed, i.e. it is likely that Louisiana violated Section 2 by having only one majority black district. It goes to the Fifth Circuit. The Fifth Circuit holds Louisiana is likely to lose, that they probably violated Section 2 by diluting the votes.

And SCOTUS, for our purposes, declines to hear it, okay? That's actually a little more complicated. They basically GBR'd it, but whatever. Next, now the Fifth Circuit says, you know, you can keep litigating this if you want, but you've got a few weeks to redraw a map or the district court's gonna draw it for you. Well, they've got incumbents to worry about and the district court's already signaled how it's going to draw the

map. And it's going to make these nice little square districts with two majority black districts. And the Speaker of the House is going to lose because all of a sudden, that's going to be a Democratic district. And the head of their whatever, some other committee that's important was going to lose because that was now going to be a democratic district. Like this is this would be catastrophic if the district court's map goes into effect for the Louisiana legislature. So they redraw a new map and now there's two black districts and the second black district as as you can, I'm sure guess, is a snake crawling across Louisiana because it has to have a majority

of black voters in the district. Or else it violates section two, right? Well, now they get sued from the other side. That in fact, this also violates the Voting Rights Act, because race predominated in their decision of how to draw the maps. Now it's a packing problem. So they got sued for cracking. Then they got sued for packing to fix the cracking.

That's what this case is. So the argument is something like, well, the second a court told them that they needed to draw another black district, then obviously they were considering race as a predominant issue and how to draw that next district. So they violated section two again. As in you can't ever remedy an original section two violation.

This gets really messy because it was also only on a preliminary injunction. Should they have had to litigate the whole thing? So David, let me just read you the introduction from Louisiana's brief. Oh, I'm so glad you're reading this. It's well done. Diving up of Americans by race is a stain on our nation's history.

It should be a disgraced relic of the past. Regrettably, however, this court's voting cases forced the sovereign states to continue that vile practice today, penalizing states both when they consider race too little and when they consider race too much, all in the name of enforcing our, quote, colorblind constitution, quoting Plessy v. Ferguson in Harlan's dissent. So life goes across the nation and in Louisiana. Happily, Louisiana today is nothing like Plessy's Louisiana, yet the cruel irony is that Louisiana today is not just permitted, as the Plessy majority believed, to sort its citizens based on the color of their skin. It is required to do so, at least to some unspecified degree. That

is why Louisiana arrives here unhappily. The facts of this impossible case are familiar. The Middle District of Louisiana held and the Fifth Circuit affirmed that Louisiana likely violated Section 2 of the Voting Rights Act by failing to create a second majority black district. Louisiana thus created a second majority black district. But within a matter of weeks, the Western District of Louisiana enjoined the new majority black district as an unconstitutional racial gerrymander. What now? But nobody truly wins in this sordid business of divvying us up by race, quoting the chief justice on that one.

And if Louisiana were to lose on these facts, that would underscore the injustice of forcing states to run an endless legal obstacle course, lined with notoriously unclear and confusing precedents. More than any before, therefore, this case presents a compelling opportunity for the court to call home, to alter its its course rather than continue on. Okay, so they got a few options here. One, the group that's now suing on the packing

is a group of, quote, non-black Louisiana voters. They could kick this on standing and just hold that like, we don't know what that is and why you get to sue by saying that the black voters are being packed into a district. But I'll tell you oral argument, not a whole lot of folks talking about standing, like maybe none. So that's probably a loser. Number two, the precedent previously has said that states get some breathing room on this. So if there's a section two violation and you have to now draw a new district, we give you some latitude to figure that out.

If you had to draw the district court's district, then why are we even letting you redraw district at all? The whole point is, yes, it's gonna be different than the district court's version of the map. But of course, David, it would be a real thing if you could then draw an insane district and cry, but look at the preliminary injunction from before. And they're like, okay, yeah, but we didn't mean that.

I mean, there's some version here of like, you tell your kid to clean up their room. And so they throw everything in a pile and they're like, see, I did it. And you're like, yeah, but I didn't mean that way. And you knew that. So you don't really wanna let the breathing room thing just be like, well, once one court has said you cracked,

then you can pack as much as you want. Like you either get called for cracking or packing, but you can't get called for both. There's a question of whether Louisiana really can't claim that they survive strict scrutiny by using race because their compelling interest was complying with this court order if it was only a preliminary injunction. Maybe they were supposed to continue litigating it, but that didn't seem to have a lot of

supported oral argument either. And then David, there's this very interesting set of questions from our swing justice, Justice Kavanaugh. First of all, this is just one of those. Your argument is there's a second majority minority district acquired because of its race, because of section two, but the choice between which majority minority district to use was made entirely on politics. I.E. yes, race predominated, quote unquote, the decision to make a second district at all. But in terms of actually drawing that district, that was partisan gerrymandering,

and that's a political question, and we get out of it. And there's plenty of evidence that it was, as I mentioned. They kind of admit it. Oh no, they're the whole defense. And the legislature itself says, we're trying to protect these incumbents, and this incumbent is the one we're gonna let lose, basically.

So absolutely, it was partisan. The question is whether you can do that two-step analysis. Like the choice to have a majority of a race-predominated district is legal, but then how to draw that district? You can't use race as a predominant factor, but then you had to draw the district using race because it had to be a majority Black district? I agree.

This gets really messy. And here's Kavanaugh's second point, which I think might be the whole ballgame here, David. When is the endpoint? Is this like desegregating schools, busing for instance, and affirmative action in higher education that at some point we just stop drawing district lines

on the basis of race when the situation on the ground is not what it was in 1964? And here was the answer from the people who want to strike down this district as a racial gerrymander. I think this shows us that Section 2 is no longer performing the function that it was assigned, that Congress thought it was going to perform back in 1982. Now, why are we seeing so many Section 2 cases?

Why are we suddenly now, as voters are becoming more integrated, why are we suddenly finding new Section 2 districts everywhere? I.e., if this were actually working the way that you think as racial segregation is lessened, I think we can all agree, from both 1965 and 1982 when this was last amended, then why are we seeing so many more of these partisan racial gerrymandering cases? And the argument would be because they're used for partisan ends. They're no longer really being used for racial segregation purposes. I

think there's something to that David. I think there's at least a few members of the court interested in it. The fact that Kavanaugh, the swing justice is interested in it. In the end, you saw the three more liberal justices, Jackson, Sotomayor, and Kagan, all wanting to uphold this district. And basically be like, yeah, yeah, yeah, nope. Once you had the cracking problem, you can't have the packing problem. This is that breeding room we were talking about. Again, sort

of a reverse of what you would see. And I think, well, if there weren't six other justices for them to worry about. I think they think they can get a majority of the court to just be like, this is fine, let it go. You have Justice Gorsuch, who maybe seems less inclined to let it go. Justice Kavanaugh talking about having an end to racial gerrymandering cases at the court. And then you've got Chief Justice, who actually seemed much more inclined to hold, to racial gerrymandering cases at the court. And then you've got Chief Justice, who actually seemed much more inclined to hold, this was a racial gerrymander.

Race clearly predominated, and he would perhaps strike down this district. So really hard to say where they're gonna come out here based on the questions alone, David. Yeah, it really was. And the Chief Justice was very interesting to me because either, so correct me if I'm wrong, this thing has got a lot of twists and turns to it.

Yeah, it does. So if you strike down the current map, which has the political gerrymander to save Mike Johnson. Yes. Then you either go back to a one black, probably one black representative out of six of Louisiana, or you go back to the, what would they call the Robinson outcome, right? The Robinson litigation, which says two black representatives or two majority black districts and no Mike Johnson.

That's right. And this is why you have three groups in this case. Louisiana is in the middle. The NAACP wants this map. Because as you say, David, the alternative very much looks like you end up with just one black majority district. So the NAACP wants this map.

Then you have the non-black voters who want to strike down this map as a racial gerrymander, and they'll take their chances on what comes next. But look, this is where I get really hung up. I mean, we talked about this with the Alabama case. District courts are drawing congressional maps. That is happening a lot these days, more so than in the past. I kind of take their point that this can't be what section two is about,

that we're getting more judicially drawn maps as we're also, by the way, getting fewer state legislatively drawn. We're getting more commissions, redistricting commissions. Racial segregation is dissipating, maybe slower than we all wanted, but nevertheless. So it's getting harder to draw those maps because people don't all live

like in racially segregated communities anymore, which is why they had to draw a snake across the state because they had to pick up black voters from basically two regionally disparate parts of the state. Yeah, it's a really tough situation because on the one hand, especially in, you know, we know, remember from the Alabama case, Louisiana is very similar. The racial differences in voting are still giant. Giant. Yeah. And especially in Alabama. Yeah. Yeah. Less so in Texas. Alabama, Alabama and now if it's white, black, I don't know.

Now Latino votes in Texas, very different say from Latino votes in California. I don't know about the difference. Yeah, a bunch of these cases used to be the LULAC versus Perry. They used to all be like, oh, Latino voters have to have their separate districts and like all these groups need separate districts. Yeah. And you're like, what is happening? Yeah. separate districts and like all these groups need separate districts. And you're like, what is happening? Yeah, I think the racial segregation or the racial, I don't want to use the term segregation,

the racial distinctions in voting on almost all other minority groups, whether it's Latino or Asian, are more, that's vanishing. They're much more up for grabs. But the white-black distinction, which happens to be the main distinction that matters in Louisiana, Alabama, Mississippi, et cetera, et cetera, is still very sharp, even as the residential segregation has decreased a ton.

So that means that if you're going by- But does it, but David, does it mean that you must have a black representative or does it mean you need a democratic representative? Because that's really what this gets down to. You're going to be in a democratic district potentially, but you won't have a majority of black voters who would get to then elect a black person. That was the whole purpose of this. It wasn't to have liberal politics represented. It was that they would need someone who was black, that that's the only type of congressmen who could represent their interests. That feels anachronistic at this point. But it's not in the Deep South. Okay, so the question you have in the deep south

really is by and large, I mean, almost, there are very few exceptions. Representative Cohen in Memphis is like one of the very few exceptions to the rule, which is that overwhelmingly black districts tend to elect black representatives. Representative Cohen in Memphis is like a unicorn in that way, that he is a white democratic representative

of a majority black district. So you do have this issue where- But if we keep having overwhelmingly black districts, then just like numbers game, they're gonna have black representatives. Right. Right? You see the problem. But that's-

It's sort of a chicken and egg. You keep going, not you, but like we as a country keep going round and round in this and like maybe there needs to be an endpoint, you know? Well, I would agree with you that there needs to be an endpoint. I don't see it anytime in the near future in the deep south. I'm sorry to say. Well, and indeed, we had this conversation last time when it was about Alabama and I thought they were potentially gonna strike down

Section 2 and racial gerrymandering then because you must use race, but not too much, and it can't predominate, and they don't have a good rule for it. And here we are back again. Well, it's the weird thing where on the one, just as Louisa Anna was arguing, we're in the rock and a hard place

because if you don't use race in some circumstances, we're toast because there is this historical reality that we're dealing with. The reason why a majority black district is democratic and a majority white district is Republican is rooted in a lot of stuff. Then if then if you say, well, section two, I mean, the entire motivation around section two and the Voting Rights Act is rooted in problems of race. But then at the same time, if you go too far in that direction,

then you've got a racial gerrymander. But isn't it supposed to be under section two, a racial gerrymander? But isn't it supposed to be under Section 2, a racial gerrymander? And in the meantime, we end up with five years of litigation over congressional maps in a lot of these states, David, in the South, where these types of lawsuits can be brought. And we are sorting people by race. Everyone knows we're sorting people by race.

And then we're just arguing over how much we're sorting them and how much is too much and how much is too little. And you can sue no matter what. A judge, I mean, this gets to the forum shopping point, a judge will strike down whatever congressional map you come up with. And so then the state is left with finding some perfectly threaded needle of the amount of race to use, or allowing a federal judge unelected to draw your congressional district map

and district out the speaker of the United States House of Representatives. Which what? That's silliness. And frankly, I think it goes to the like, either the poor ability of judges to draw these maps or to something else that is not a judge's role, you know?

And what thing that makes this so difficult is it's just a fact, again, like I'm talking deep south here, is that the racial gerrymander and the partisan gerrymander are not going to be different. So if you're talking about... Now, there are some places where you're going to have enough, in some parts of the South, where you might have enough white Democratic voters to create Democratic districts that are not packed with, you know, black voters. But by and large, especially in like, again, in the deep south, the black voters are democratic and the white voters are

Republican. And you look at the exit polling, you look at the numbers, it's just overwhelmingly the reality. And that's, so that's where you get into this, like you're saying, this chicken and egg problem in these redistricting cases. So if a political gerrymander is fine, you can politically gerrymander the state. The justices are not going to take a look at the political gerrymander. Racial gerrymander is sometimes necessary under Section 2, but guess what?

It's going to look exactly like political gerrymander. That is where this becomes, like, you know, the way that Louisiana opened this by saying, we don't wanna be here. Like, we don't really know what to do. You know, we can't quite figure this all out. That's right. I mean, but a lot of this is the fruit of the poisonous tree of both the historic racism

in the deep south and the very cynical way in which politics has exploited the historic racism to maintain these racial differences and voting patterns in the South. And they're deep in why, I mean, these racial voting preferences between black and white in the South are very deep, very long-standing, and as much as you know, you're seeing sort of the Republican Party creating a multiracial coalition, especially in other racial groups, not so much happening in the Deep South with white and black voters. There might be some tiny movement on the margins, but that's just, it's just not moving. And so that is, that's one of the reasons why it's such a profound and intractable problem when you have this dichotomy between racial gerrymandering, sometimes necessary, sometimes unconstitutional, and partisan gerrymandering, judges have hands off. I mean, I do not envy the Supreme Court on this.

And this is like, I'm with Amy Howe when she wrote in the SCOTUS blog. Who knows how this is going to turn out? I'm with her. I don't know. I thought they were going to strike it down in Alabama. The fact that they didn't, I see no appetite this term to make some huge pronouncement on voting rights issues. So my prediction, a weak one at that,

is that we're going to see a whole bunch of opinions and that there will be a majority that says, this map is fine, but they don't know why. Exactly. So they're going to save Mike Johnson. They're going to keep two black representatives out or two democratic representatives. In the Snake District.

In the Snake District. Basically because every other outcome is just worse than that. Yeah. Yep. That's what's going to happen. But I can't tell you why. This is like one of those cases where you go in to if you're the non-black voter lawyer and you're like,

how do you want to lose? Right. Exactly. All right, David, this next one we have flagged as being potentially interesting. This is about the Federal Communications Commission delegating to a nonprofit corporation to administer the affordable telephone and high-speed internet for rural areas and to set the amount of dues basically that are owed to pay for that. Perhaps this was going to be an interesting non-delegation case that Congress cannot delegate to the FCC to delegate to a corporation to set these sort of fees that could be seen as a tax, for instance. Maybe there was one vote. This turned out to be a real lopsided mess. I think it's going to at best be 8-1 with Gorsuch saying that it's a tax that you can't

delegate. But more likely, I actually think this is 9-0 with an interesting concurrence that's maybe joined by a few other justices. It's like, we're open to a non-delegation problem. I don't think this is it. And the solution proposed by the plaintiffs in this case that Congress needed to provide a cap, that that would have somehow magically solved it. And then Justice Kavanaugh is like, okay, what if Congress set the cap at $3 trillion, you know, some just like made up number. And the plaintiffs council had to be like, yeah, that would work. Okay, then what are we doing here? Bye. And that was kind of the end of that case. So this one turned out to be a bit of a fizzle. So I will say, I will lodge this case under the category

of always listen to Judge Sutton. Okay, and here's what I mean. So a couple months ago, I interviewed Judge Sutton on a New York Times podcast, because I really wanted to introduce listeners to what is originalism. Like, let's take a very, you know, let's introduce it to them through one of the judges who's probably almost better than any other judge.

Just explaining stuff in a way that folks can grasp and understand. Oh, I was just going to do full stop. A judge that's probably better than any other judge, period. Love you, Judge Sutton. He's fantastic, and I love the way he explains things, and he's very careful in his writing to explain things in a way that people can understand, and got a ton of great feedback.

And I only felt bad about that interview for one reason, because it shows the difference between judges who judge for a living and people like me who take a look at judicial opinions, Peg, you know, cover the law, have practiced law, but also live a little bit, maybe too much in the world of legal theory. Because I was going to say, one of the things that I talked about was there are these doctrines that might become more important in relatively near term, and one is major questions, which has already been quite important.

But I also said non-delegation. Okay. So non-delegation really hasn't been much of a thing at the Supreme Court. And people who pay a lot of attention to legal theory have been saying, well, maybe it should be more of a thing. Like this should be more of a thing. Non-delegation, the idea that there are powers of the government, of a branch of government that cannot be delegated. And I raised that and he was very nice

in sort of saying, okay, but then he reminded and the listeners in a very gentle way that there's really not been very much non-delegation jurisprudence out there at all. And this was gonna be the one that was going to start bringing non-delegation back, like Lazarus coming from the tomb. Here was going to come non-delegation, and we had a Supreme Court case.

And nope, Sarah, nope, nope, nope. SARA BLEICHINGER LAUGHS SARA BLEICHINGER SIGHS Whomp, whomp, non-delegation doctrine. Yeah. Always listen to Judge Sutton. There was one moment that I thought was very interesting as we try to flag things about these justices that we're trying to learn about,

especially some of the new ones. So Justice Amy Coney Barrett, when she was talking to the team non-delegation, and she says, okay, but what are the consequences if we strike down this fee arrangement as you want us to? Can you walk through what other of these fee arrangements that are currently happening in the government? Would this unleash chaos?

Would these all fall? Are they all somehow different than this one? And his answer is, well, of course, that's constitutionally irrelevant. She says, I know, but I'd still like to think about the consequences. I think the consequences are relevant. That's some Y-axis institutionalism right there. Oh, and you know who is sitting there right next to her getting mad as a hornet? Justice Alito. That's right. Yeah. getting mad as a hornet, Justice Alito. That's right.

Yeah. So I mean, yeah, we've always said this is a divide between the justices as stark as the conservative to liberal divide. Yes. But nobody talks about it. And so I'm glad it came up at oral argument because it allows me to have something to point to.

Thank you. Yeah, no, it's so funny, the AO hive mind, I saw that and I was like, oh yeah, okay, this is interesting. And the fact that she asked that question is super relevant for a lot of the really reach goals that the Trump team has constitutionally. If you've got a Justice Barrett going, so what are the consequences here? And if the answer is China shop meat bowl, then Justice Barrett may not be as excited about that, but very, very interesting. And with that, we will conclude another episode

of Advisory Opinions. And David, I have no idea what we're going to talk about for the next episode, but I have no idea what we're going to talk about for the next episode, but I have a feeling we won't lack for content. No, and I do know that what we've got coming next week, we're going to have to have some bonus cultural content because I have questions for you about White Lotus,

specifically the three women who are sort of at the part of the core of the story this season, I got a Slow-burn feminist debate that is bubbling up in white lotus and I feel particularly well positioned to weigh in on it because basically these women are supposed to be my age and Also, you have robust women's friend groups.

I do, I do. Yeah, so I'm gonna interrogate you like you're an expert witness on this matter. Watching it has been somewhat anxiety producing as I think about like all of our, we take girl trips. Not to amazing Thai resorts, but still. And we've had a real deficit in like, we haven't had a single dating segment lately,

not a single relationship segment. We're gonna do it all in one. Yeah, yeah, this is gonna be, cause I- How women care for each other, caricatured to some extent. Or not. But right, this is how we care for each other. Some of it is you need to talk to the other girlfriends

to figure out like, does she actually need us or doesn't she need us? And there's a fine line between doing it for gospel purposes and doing it for care purposes and everything else and watching it. Yeah, it's not false. Yeah. But I will say in the evangelical context,

you can always get out of the gossiping accusation by saying, we're just trying to figure out who to pray for and why. Accountability. I've heard that a lot from gossipy Christians. This is about accountability, Sarah. About accountability. All right. You tell yourself that, y'all.

We're sharing prayer requests now, Sarah. All right. Well, we'll wait till the season is over this Sunday and we'll talk about it next week. Awesome. Bye. Bye.