Stephen Miller’s got some ideas. So this week, Mary and Andrew start with a focus on his recent acknowledgement that the White House is considering suspending habeas corpus altogether for migrants. They talk about what that means, and the reality that it lacks any legal sniff test, which the Supreme Court agrees with. Then, they highlight what happens when due process works, after the release of Rumeysa Ozturk, a Tufts student who was detained by ICE over an opinion piece she wrote for the student newspaper. Next up, a significant decision from Judge Susan Illston out of California, putting a temporary hold on reducing the federal workforce. Mary and Andrew note what she held, including that the administration needs to follow procedure and get congressional buy in. And lastly, they preview the Supreme Court argument Mary’s ICAP team is bringing this Thursday on birthright citizenship- not on the merits per se, but on the issue of national injunctions. And a quick eye pop on Trump’s decision to swap out Ed Martin as the US Attorney for DC with yet another Fox News host, Jeanine Pirro.
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Note: This is a rough transcript. Please excuse any typos.
(MUSIC PLAYING)
Andrew Weissmann: Hello, and welcome back to Main Justice. It is Monday afternoon, May 12th. I’m Andrew Weissmann, and I’m here with my co-host, Mary McCord. Hi, Mary.
Mary McCord: Hi, Andrew. I feel like we’re almost getting into a trend of these Monday afternoon/evening recordings instead of Tuesday morning, but it always feels very scrambled to me to get it together on a Monday afternoon after I’ve been working all day.
Andrew Weissmann: That’s why I feel if you could just change that to how you feel since January 20.
Mary McCord: Yes. Yes. That’s true.
Andrew Weissmann: Because as we’ve talked about, the sort of intentional blitzkrieg --
Mary McCord: Yes.
Andrew Weissmann: -- of all of this is a challenge. And once again, even though last week we did two episodes, there still was a ton to talk about. And so at least, Mary, I feel like I’m getting my fill of Mary McCord.
Mary McCord: That’s for sure. I’m sure you’re quite sick of me by now.
Andrew Weissmann: Yes. It’s like, no. Two years in running. Still want to get as much as I can.
Mary McCord: It’s all good stuff.
Andrew Weissmann: This is when we’re, it’s like no anecdotes, no chitchat because we need to get to this because it’s just there’s just too much to cover.
Mary McCord: Too much.
Andrew Weissmann: Which is maybe my segue to Mary. What is on our dance card?
Mary McCord: Right. Well, we’re going to start with the big news that came on Friday. I mean, I guess it’s not news. It’s a stupid statement, honestly, is what it is, coming from Stephen Miller on behalf, I guess, of the White House or speaking in his role at the White House saying that the administration is taking a look at suspending habeas corpus. You’ll hear that. We’ll talk about what that means and explain why he’s just flat wrong about that as well as about the rights of people, even people unlawfully here to due process.
Then flowing naturally from that, speaking of due process, speaking of habeas corpus, we’ll talk about Rumeysa Ozturk, the Turkish graduate student at Tufts, who was able --
Andrew Weissmann: Yes.
Mary McCord: -- to successfully obtain review under a petition for habeas corpus and has now been released from detention where she was being held after.
Andrew Weissmann: It’s a bit of good news. I mean, --
Mary McCord: Very good news.
Andrew Weissmann: -- it’s so hard to view this as good news because it’s outrageous conduct by the government, but the courts really stood up here.
Mary McCord: Yes. And then we will totally switch gears to the dismantlement of the federal government, basically. Sometimes we talk about dismantling individual departments and agencies, but a decision just out of the Northern District of California that was sort of, you know, a mass challenge to an executive order requiring massive reductions in force against all kinds of, I think, 21 different agencies of the federal government --
Andrew Weissmann: Yes.
Mary McCord: -- that has been enjoyed.
Andrew Weissmann: Huge case.
Mary McCord: Huge case.
Andrew Weissmann: Yes.
Mary McCord: And then we will finally look forward. Thursday is a big day here at the Supreme Court.
Andrew Weissmann: Yes, it is, Mary and for you.
Mary McCord: Yes. For my team, and all of the plaintiffs and all of those who challenged the president’s executive order attempting to deny birthright citizenship to certain categories of children born here. That has been enjoined nationwide since shortly after the executive order was issued. And this is really not about the merits. This is really about whether it can be a nationwide injunction instead of something more limited. But I think probably some of the merits will get discussed on Thursday. So, we’ll talk a little bit about preparation, but really our big discussion of that will come next week after we’ve heard the argument and we’re able to talk about it. And then we will also, of course, because I am in D.C. and actually today, you are in D.C. as well. I will talk about what’s happened at my old office, the U.S. attorney’s office in the District of Columbia.
Ed Martin is out. Jeanine Pirro is apparently in at least on a temporary basis. So that’s crazy news, to be honest with you, and we’ll talk a little bit about that. So, let’s jump in.
Andrew Weissmann: Okay. Mary, what is, for non-lawyers, what is habeas corpus when we you talked about so the White House is thinking about suspending the writ of habeas corpus, what’s known as the great writ.
Mary McCord: Right.
Andrew Weissmann: What is it?
Mary McCord: Right. So, it’s actually mentioned in the Constitution, but in a clause called the Suspension Clause. It’s in Article 1, and we’ll come back to that because Article 1 applies to the powers of Congress, not the powers of the president or the executive. Those are under Article 2. And what the Suspension Clause says, it doesn’t say really what it is, but it says, Privilege of the Writ of Habeas Corpus shall not be suspended unless when in Cases of Rebellion or invasion, the public safety may require it. We’re going to come back to that. So, what’s in the Constitution is a limit on it, right? That still doesn’t say what it is. What it is, is that ability to say, basically, I am being unlawfully detained. That could be in a pretrial context most recently. And with respect to Ms. Ozturk, we’re talking about just a civil immigration detention context. It can be the context of somebody who’s serving a sentence even, you know, post some proceedings in court. It’s about I am being wrongfully held and I need to be released.
Essentially, you’re saying to the court, deliver the body, the body of the person, right? The body of the person who is alleged to be unlawfully detained. And the founders thought that this was so, so important that this writ that predates the U.S. Constitution, this notion of being able to seek a writ of habeas corpus to review an unlawful detention, it goes so far back that the founders wanted to make sure any suspension of it would be really limited, and that’s why they included it in the Constitution.
Andrew Weissmann: It’s such a fundamental thing for lawyers. It is Latin for this idea of you have the body. The corpus is the body. And it’s essentially a way of being able to say to the government, you have the body, and lawyers get to say, look, you know, deliver the person. But the idea is that you can go to court and make your arguments.
Obviously, this is when we’ve talked about Abrego Garcia, and we’ve seen since January 20, this sort of roundup of immigrants, the vilification of them, the taking of them without due process, another key concept, that is being done pursuant to the writ of habeas corpus. And so that is such a fundamental thing. That, by the way, is CEG why Stephen Miller is floating this idea of we may want to get rid of it because courts up one --
Mary McCord: It is thwarting their plans.
Andrew Weissmann: Yes. The courts up one side and down the other are using the writ to say this is improper, and they are staying the actions indeed up to and including the Supreme Court, but also courts all around the country. So that’s what the habeas corpus is. Shall we now turn to here, Stephen Miller, a brief excerpt? It’s important to hear it from the horse’s mouth, and then we’ll talk about what we think is going on here.
(BEGIN VT)
Stephen Miller: Well, the Constitution is clear, and that, of course, is the supreme law of the land that the privilege of the writ of habeas corpus can be suspended in a time of invasion. So, to say that’s an option we’re actively looking at. Look, a lot of it depends on whether the courts do the right thing or not.
(END VT)
Andrew Weissmann: So, Mary, before we get to the last part, which may be more relevant to me in my, you know, because I used to prosecute mob cases.
Mary McCord: Right.
Andrew Weissmann: But this idea, while the Constitution is clear, what’s your take on that? By the way, Stephen Miller, I don’t think he is a lawyer. So, is the Constitution clear? I mean, what would be necessary for this administration to say, you know what? We’re just going to get rid of the writ of habeas corpus and suspend it under the Constitution.
Mary McCord: Well, I think one thing I’d say is the Constitution is clear that the power to suspend it lies with Congress and not the president.
Andrew Weissmann: Hence, Article 1, not Article 2.
Mary McCord: That’s exactly right.
Andrew Weissmann: And just to repeat, as you noted, just Article 1 is congressional limits. Article 2 is executive, and it’s placed in Article 1 because it’s completely understood that to suspend it, there needs to be a congressional finding, not an executive finding.
Mary McCord: Yes. Now, some of those historian listeners out there may be saying, wait a minute. Wasn’t there a time at the beginning of the Civil War when President Lincoln suspended the writ of habeas corpus and didn’t he get to do that? Yes and no. He did attempt to do that. That was immediately criticized, went before Justice Taney, who was one of the Supreme Court justices who said, no, you do not have authority to do this as the president. But at the time he did that, Congress was not in session. The war was beginning. He was surrounded in Washington, D.C. by states that were seceding. And obviously, there was a significant threat and danger. And so, he did say he was suspending the writ. And then when Congress next came back into session, not that long thereafter, they actually went back and approved of his suspension of the writ for the purposes of the war and ratified essentially what he had done.
So, it is one of those asterisk cases, but in a very unusual context and a very unusual circumstance, and the justice is hearing it did think that he did not have the power to do that. The other times this case gets talked about is in defiance of court orders, right? And for all the reasons I just indicated, the president, President Lincoln then going and taking his case to Congress and Congress ratifying it is I think also why it’s different when it comes to whether a president defied a court order or not.
Andrew Weissmann: Yes.
Mary McCord: But at any rate, right now, Congress, I mean, they’ve had some, you know, recesses here or there, but they’re in session. Right?
Andrew Weissmann: They’re in session. And we’re also there is no war, rebellion, or invasion. And that’s where the courts that have reached the merits of the Alien Enemies Act invocation by the White House have actually talked about that in the context of TDA. Obviously, we could hear --
Mary McCord: Which we talked about, I think last week. Right?
Andrew Weissmann: Yes.
Mary McCord: Yes.
Andrew Weissmann: We at this point, it feels like this is like you know, our class, our Main Justice class, --
Mary McCord: Yes.
Andrew Weissmann: -- people should be up to speed on that. Is that going to be on the exam at the end of the semester?
Mary McCord: It’s going to be on the exam, for sure. Yes.
Andrew Weissmann: So, there’s obviously the issue of the sort of lack of a rebellion or invasion. I think if you asked a hundred people in the United States, they’d be like, what rebellion or invasion? And then also, if I heard you correctly, Mary, the language of suspending the writ in the Constitution is not just a rebellion or invasion, but it also has to be in the public interest.
Mary McCord: Yes, that the public safety requires it.
Andrew Weissmann: Exactly. Requires. So, all of those are findings that Congress would need to make. So, there are a lot of different steps to Stephen Miller’s statement about where he’s sort of floating this out there and dangling it. My take is it all really has to do with the last sentence, --
Mary McCord: That’s right.
Andrew Weissmann: -- which is a lot of it depends on whether the courts do the right thing or not, which is like, it’s a shame if something were to happen to your little grocery store.
Mary McCord: Wouldn’t it be --
Andrew Weissmann: I’d hate to see something happen.
Mary McCord: Wouldn’t it be a shame. Wouldn’t it be too bad? Yes.
Andrew Weissmann: And so, we’re going to be thinking about doing this and have it this sort of Damocles hang over your head in the same way they thought about how they wanted to deal with the Eric Adams case, which we talked about. And so, the idea that you’re like, hey, back off. This is like, you know, a brush back pitch. To me, even in his demeanor, it suggested that, which is that this was sort of, I’m going to toss this out there because what’s the downside? At most, it could lead the courts to maybe pull back. I personally, I think that’s a transactional person. This is just my intuition, is that that’s a transactional way of looking at it. Whereas I think most judges are acting out of principle. You might disagree with the judges, but I think they would view that as like and we’ve seen it. The judges are standing up. We’re about to talk about the Oster case and the Judge Illston case. And they’re a slew of judges of all sorts of political stripes who I think are going to take kindly to that. And I think you lose credibility with the courts when you don’t take the high road as the Department of Justice and or the White House.
Mary McCord: I agree with all of that. I think it also gives up the game, and the judges will see that. Right? Because when he’s saying it’s not about an invasion, it’s not about a rebellion, it’s not about what public safety may require, it’s instead about whether the courts do the right thing or not. I mean, it’s pretty much, you know, right in the open saying this has nothing to do with the requirements in the Suspension Clause. This is only about a threat if the courts don’t do the right thing. And, you know, judges are smart. They actually are lawyers. They’ve read the Constitution. They know what the requirements are. And sometimes I think the things that he says are just, you know, foolish. And like you said, don’t help the government’s cause at all.
Similarly, a post that a social media post, I guess, recently, where --
Andrew Weissmann: Yes.
Mary McCord: -- was this May 5th? Wherein Stephen Miller said, quote, the right of due process is to protect citizens from their government, not to protect foreign trespassers from removal. Due process guarantees the right of a criminal defendant facing prosecution, not any legal alien facing deportation. Can I just say the Supreme Court, I know in JGG held that those who were facing removal under the auspices of the Alien Enemies Act proclamation said that they were entitled to notice of their removal under the act and within a reasonable time and in such a manner as will allow them to actually seek habeas relief in the proper venue before the removal occurs. And they --
Andrew Weissmann: Before.
Mary McCord: Before.
Andrew Weissmann: Before.
Mary McCord: And they said, quote, it is well established that the Fifth Amendment entitles aliens to due process of law in the context of removal proceedings. That was a quote from one of their previous cases. So, it’s not even like JGG was the first time to say this.
Andrew Weissmann: Mary, but that case was a 19th century Civil War case. Is that where you’re quoting from?
Mary McCord: Well, that --
Andrew Weissmann: Or is that a little bit earlier?
Mary McCord: That particular one was not the 19th century one, but yes, this goes back and back and back.
Andrew Weissmann: But the quote that, just so people, I was being facetious. The quote that you just gave, Mary, that’s from the JGG case under Trump 2.0.
Mary McCord: Yes.
Andrew Weissmann: That is a recent --
Mary McCord: Yes.
Andrew Weissmann: -- Supreme Court loss that the administration had nine to zero on the issue of due process. And so, the idea that Stephen Miller would tweet out that due process only applies to citizens and that it only applies by the way, that’s wrong. That’s so we’re both professors. We both teach at law schools. So, f, that’s, like, we’re going to grade that. And then also the idea that due process only applies if you’re a criminal defendant and apparently only if you’re a citizen criminal defendant, meaning, like, if you’re a criminal defendant but not a citizen, you can have conviction first and trial later. I mean, it’s --
Mary McCord: Not the way it works.
Andrew Weissmann: Yes. I do think that in many ways, this was a little bit of a not only a threat, but a sort of a test to see, like, how would people react and sort of like this sort of owning the libs kind of thing where you float something out there.
Mary McCord: Yes.
Andrew Weissmann: But to me, it falls into the category of what’s happening with law firms. It comes up with the talk of taking over Greenland and Canada. It’s dangerous talk of normalizing the unthinkable. And it’s so pernicious and so irresponsible and completely outside of politics. Right? It’s not a partisan issue. It’s just you would never, in a million years, see a sort of a normal Republican or Democratic administration where people would be this irresponsible.
But Mary, should we talk about Ozturk? Because that’s in habeas case. And as you said, this is a graduate student at Tufts. She is currently free, out on bail.
Mary McCord: She’s free.
Andrew Weissmann: There is a pending case, but she was in jail from March 25 when agents wearing masks, armed, just swept her up in Massachusetts. And then she was taken to a variety of different places and ended up in Louisiana in prison, and she was released by court order --
Mary McCord: Not on criminal charges.
Andrew Weissmann: -- after hearing.
Mary McCord: Let’s just be clear. It was only based on the fact that without any notice to her, there’d been a determination made to revoke her student visa, which means that she is subject to removal or deportation. So rather than, you know, hand her some notice saying, we’re revoking your student visa, appear at x, you know, court on x day, and you will get a chance to contest that. No, no, no. It was let’s grab her literally off the street by people she did not even know were ICE agents, throw her in a car, move her around. We talked about how many times she was moved around, all the while not telling her attorneys or anyone else where she was so that they have a hard time filing a petition for a writ of habeas because one of the requirements is that you’re supposed to file it in the place of confinement against the custodian holding you. And when you move people around three or four or five times in the dark of night without telling anyone where the person is going, it makes it very hard to do that.
And one of the rulings that we talked about last Thursday on our premium episode was that the lower court and then the second circuit had said, Vermont is the proper place because government, you can’t play games with this and move people a bunch of times and not let anybody know where they are and then say, whoops, wrong court, you got to file in Louisiana.
Andrew Weissmann: It’s a shell game --
Mary McCord: It’s a shell game.
Andrew Weissmann: -- with a human being.
Mary McCord: Yes.
Andrew Weissmann: With a person. And the lawyers didn’t know where she was. She, for 24 hours, had no ability to contact counsel. And you know what? When she finally had that ability and had a hearing and there was a hearing on Friday, the judge said, you’re being released. There is no basis to detain you. You’re not a risk of flight. You’re a graduate student. You’re not a danger to the community. Meaning, to your point, Mary, under ignorable administration, if you thought she is somebody who could be deported, and maybe she is, and maybe she isn’t, that will be determined going forward. You give her a notice that says, here’s the date that you need to show up and we’re going to try and revoke your visa and we think you shouldn’t be here anymore. By the way, let’s just get to the merits of this, which is really?
Mary McCord: Yes.
Andrew Weissmann: She’s a graduate student. And so, what the court said is and this is sort of going to be one of the key issues going forward, is the only evidence presented in terms of why they were doing what they were doing was her having participated in writing an opinion piece.
Mary McCord: Co-coauthored.
Andrew Weissmann: Right. An opinion piece. So that’s a First Amendment activity.
Mary McCord: Yes.
Andrew Weissmann: Now, maybe the government will have more evidence going forward, but in front of this judge, they didn’t present anything. And the judge actually was saying, you literally, he like, that was a quote from him. You literally are presenting nothing to me other than that.
Mary McCord: Yes. And I think this is important because now she’s back to actually engage in that litigation. But the judge did already decide when he said he’s got jurisdiction over this habeas matter and they need to transfer her back to Vermont so that she can participate in the proceedings. And ultimately then said, you need to just let her out right now and move her back. He found a likelihood of success on her claims of First Amendment retaliation and Fifth Amendment due process violation. So, he went ahead and took a peek at her constitutional claims because the thought was, I don’t need to order this preliminary relief if I think she’s going to lose. And that wasn’t a final ruling, like you said, but he’s like, looking at it now, I find that there is a likelihood of success on the merits of those constitutional claims, that we’re only detaining her as part of retaliation for her exercise of her first amendment rights.
Andrew Weissmann: So, Mary, one heartbreaking thing before we take a break. I was listening to Ms. Ozturk at her press conference where, you know, she’s released and she’s there with her lawyers. And she’s talking briefly and thanking her university and her lawyers and the supporters who helped her. Let’s listen to her statement.
(BEGIN VT)
Rumeysa Ozturk: I came to United States to pursue my graduate studies, learn and grow as a scholar, and also to contribute child development fields with my teaching, research, and applied work. America is the greatest democracy in the world, and I believe in those values that we share. I have faith in the American system of justice.
(END VT)
Andrew Weissmann: This is somebody who is needlessly detained --
Mary McCord: yes.
Andrew Weissmann: -- for six weeks --
Mary McCord: Yes.
Andrew Weissmann: -- who is grabbed off the street. And it is somebody who we are, as our government, is seeking to deport. And you have this person who is this maligned immigrant here on a student visa saying that she is the one who has faith in our system, to me, I mean, it was so ass backwards. I mean, she was such an example of somebody talking about the American system of justice and still believing in it when she was such a victim of it.
Mary McCord: Yes.
Andrew Weissmann: It was really heartbreaking in terms of our country.
Mary McCord: Yes. Clearly, you know, for her, that means the courts and the lawyers who stood up for her.
Andrew Weissmann: Yes.
Mary McCord: Bittersweet.
Andrew Weissmann: Mary, this is why it’s great to do this with you because you are one of those lawyers. And we will get to that in our third segment. But why don’t we take a break --
Mary McCord: Yes.
Andrew Weissmann: -- and come back and then talk about the Judge Illston case and what’s going on there?
Mary McCord: That sounds good.
(MUSIC PLAYING)
Andrew Weissmann: Welcome back. So, Mary, Judge Illston, who is a district judge, a federal district judge in San Francisco, has this huge case in front of her where there is a challenge to the proposed reductions in force, the sort of, in many ways, the eradication of so many different agencies. I mean, just I can’t say scores, but it’s well over a dozen.
Mary McCord: Twenty-one, I think.
Andrew Weissmann: Yes. So many different employment actions. And there’s a challenge brought by a variety of organizations to the legal validity of what the Trump administration is proposing and there are various technical challenges under various parts of the law. And ultimately, the judge does give it a sort of temporary stay, saying, let’s put this on --
Mary McCord: Temporary restraining order.
Andrew Weissmann: Yes.
Mary McCord: Everybody knows in our class of Main Justice, they know what temporary restraining order is.
Andrew Weissmann: And she actually rejected the government’s effort to have it turned into preliminary injunction at this stage. And she issues that stay and says more is going to go forward later. But she said for now, I’m putting a hold on this, which is huge, huge because there was this is affecting, we’re talking about tens or hundreds, but really tens of --
Mary McCord: Thousands. Thousands.
Andrew Weissmann: -- thousands of people. But she starts her opinion in a, I think, really poignant way, talking about what is at stake before she turns to the various legal challenges that are made by the plaintiffs and then deals with, you know, the government’s arguments, which, obviously, she should. But what does she say is at stake? Because it’s so funny. This is where you and I, it’s like, immediately, we’re, like, a duck on a June bug.
Mary McCord: I love that. That’s a new one. Okay. Well, usually, it’s dog with the bone or something. I like duck on a June bug. So, yes. And just to be clear, like you mentioned, various different organizations, it’s employees’ unions, nonprofit organizations, and also like local jurisdictions because the assertion of the lawsuit is all these mass firings, reductions in force are called rifts, right, which will result in mass firings, are basically decimating all of these agencies, not only that the employees rely on for their employment, but that others rely on for certain services. And that’s where I think she gives these examples that really tell us what she’s talking about here.
She says, before proceeding through technical legal arguments, the court finds it appropriate to highlight several of the declarations sworn statements about what was happening to illustrate what is at stake in this lawsuit and some of the ways in which the executive and legislative powers intersect. She starts with the National Institute for Occupational Safety and Health. This is the agency that does research on the health hazards faced by mine workers. You know how many are going to get fired? 221 out of 222. Right? By my math, that leaves one person.
Andrew Weissmann: One.
Mary McCord: One person.
Andrew Weissmann: One.
Mary McCord: I’m a lawyer.
Andrew Weissmann: A single person.
Mary McCord: Not a math, right. The Federal Contract Compliance Programs, they ensure that federal contractors don’t discriminate on the basis of race, color, religion, sex, national origin, veteran status, or disability. Gone, done. No employees left to do that work, all put on leave. The Office of Head Start, right? Children who go into childhood early learning. There have been so many reductions in force that this program can’t even go on in some of the affected areas like Santa Clara County, California, which is a plaintiff, but think about the counties all over the country where this is the end of Head Start. Farm service agency gives low interest loans to small farmers that can’t get it from the private sector. Guess what? Gone. So reduced in force, they can’t get any aid. One farmer tried to get some help. No one is answering the phone. Right? No one is responding, and he misses his whole planting season. So that’s a whole season gone.
Social Security Administration seeks to reduce its workforce by 7,000 employees. Probably everyone listening has already seen reporting on TV or read about senior citizens and others calling and calling and calling and not being able to get through about their benefits, et cetera, or standing in long lines because they’re so short staffed, they can’t keep up with the request. And this goes on and on and on. So that’s a flavor, right? It’s not just federal employees losing their jobs. It’s like all the people and organizations and things that those federal employees support that are just going to be gone.
Andrew Weissmann: And I thought what was great is it helps counter the narrative of, these are just bureaucrats who are sort of sitting around --
Mary McCord: That’s right.
Andrew Weissmann: -- fat, dumb, and happy, not doing anything. This is like, you know what? You count on these people. These are really necessary people. Do you like getting Social Security? Do you like health care? Do you like the national parks? I mean, just so many things that are integral to the kind of services that we expect and want from our government. I mean, anyone who flies must be thinking about this is not a good time --
Mary McCord: Yes.
Andrew Weissmann: -- to be taking people away from the FAA when you know what I like? I like to have airports with radar and communication systems.
Mary McCord: I do, too.
Andrew Weissmann: Call me crazy.
Mary McCord: And also, those who predict and look and study the possibility of catastrophic national disasters, right? Natural disasters, things like hurricanes and mass flooding events, right? No, we don’t need that kind of thing anymore. The V.A. talking about cutting 83,000 positions. Yes, you heard that right. 83,000, so --
Andrew Weissmann: The largest, this is one where, thanks to NPR reporting, it got turned around. But the largest and longest study of women’s health was defunded.
Mary McCord: Yes.
Andrew Weissmann: Not the police weren’t defunded. The largest women’s health initiative that this country has ever undertaken was defunded by this administration. And then when NPR, to its credit, like, called this out and there was a huge human cry, it was restored. I mean, how is that effective and efficient? It really gets to so much of a real theme here, which we looked at just a moment ago with Ms. Ozturk, which is we cover this from a legal perspective. But when you think about just the policy part of this, which is even if it’s done legally, what on God’s green earth are you doing?
Mary McCord: Right.
Andrew Weissmann: This throwing the baby out with the bathwater and doing it in an incompetent way is like a whole other way of addressing this. But we get out of our lane.
Mary McCord: Right.
Andrew Weissmann: I wanted to talk.
Mary McCord: So, what’s wrong with that? I guess I want to say, what’s wrong with that? Why isn’t this perfectly okay?
Andrew Weissmann: Yes.
Mary McCord: I mean, you did say some things maybe could be done legitimately, --
Andrew Weissmann: Yes.
Mary McCord: -- but these things weren’t.
Andrew Weissmann: Yes. So, there are a number of different things. So one of them relates to what we just talked about in terms of suspending the writ, which was who has that power, Congress versus the president. And Judge Illston says, you know, the creation of agencies and how they work and whether they get sort of eradicated is not an exclusive executive branch power. We’re talking about agencies that are created by Congress, where the funds are distributed by Congress. You gave an example, Mary, of like eradicating everyone but one person from the agency. That is defunding it and defenestrating it so that it doesn’t exist. That is, as she said, that at least preliminarily is something that needs to be undertaken by Congress.
Mary McCord: And the judge goes through the fact that administrations of Republican and Democratic presidents have at various times sought to do major reorganizations and overhauls of the federal government, and they’ll submit a proposal to Congress. Sometimes Congress will say yes to some of it. Sometimes they said, nope, we’re not doing that. But this just bypassed all of that.
Andrew Weissmann: All of that.
Mary McCord: Just said, we’re doing it through executive order.
Andrew Weissmann: Right. And so, this is really saying presidents have power, but you know what? So does Congress and the courts have a role in regulating sort of one branch or the other, usurping the rights of the other branch? And so that is what she is doing here. The other, which we talked about last week, which I think is just so important, is this idea of channeling, where one of the things that the government says is, no, no, no. Even if you have a legitimate claim, it has to be brought individually and it has to be brought in front of administrative agencies, sort of one by one. And this, you can’t sort of aggregate these. You need to bring essentially thousands of claims in front of an administration. And she said, for what? So that they can come back to a pile of rubble? And that makes no sense that you would have to do that when you’re dealing with something that’s being done at a mass level. We heard the same kind of discussion by Judge Pillard in D.C. making the same point. And she also points out in a phrase that I’m going to read that it doesn’t even make sense because these administrative bodies don’t actually have the capacity or even jurisdiction to decide many of the constitutional claims that are being raised before her in the federal court.
And one of her quotes, which I just loved, was, quote, “there is nothing efficient about sending constitutional claims to a body that cannot decide them only to wait for an opportunity to appeal.” And so, she actually cites to a dissent that I thought was, you know, kind of ingenious. She cites to a dissent by Justice Alito making the same point that I doubt that Congress intended to channel petitioners’ constitutional claims into an administrative tribunal that is powerless to decide them. So, she clearly sees where this is going to end up, that this is going to go because it’s such a huge case, up to the court of appeals in the Ninth Circuit and then likely to the Supreme Court. So, she’s definitely thinking about her future audience.
Mary McCord: Already has been appealed to the Ninth Circuit. And as of this morning, just before we started recording, I checked, the docket. And also, a petition for a writ of mandamus and a stay have now been filed in the Ninth Circuit. So, the writ of mandamus is because as part of her temporary restraining order, she also ordered the government to turn over all of the actual plans because part of the president’s executive order required all of these agencies to submit a plan for how they were going to implement these massive reductions in force, but those plans themselves have not been made public. So, what little bit that’s been made public has been from different declarations. So, she ordered those to be turned over. So, part of the writ of mandamus is to say, don’t make us turn those over. We want to protect the border against that and stay everything while we appeal the merits to the Ninth Circuit.
So here we go again, right? This is like a broken record on, we don’t like the result, it should be stayed. So rather than maintain the status quo that we have, let us just keep doing what we want to do because what you’re staying is the injunction or the temporary restraining order, which means they get to keep decimating the agency. So that means along with the strategy of trying to channel this into every single employee filing their own case, which would take forever and the agencies would be gone, this is the other strategy of try to get a higher court to stay the injunction, which means all the rifts and all the dismantling can keep going on. And so, we’re seeing every single legal tactic to try to go ahead and get this stuff done.
Andrew Weissmann: Yes. And at that point, it really is too late.
Mary McCord: It’s too late.
Andrew Weissmann: This is Humpty Dumpty. And with real suffering without having this enjoined now. And, you know, frankly, Humpty Dumpty is kind of what we’re living through, which is that everything is being broken in various ways. And it is such a reason for injunctions while this gets litigated. And you know what? Maybe the Supreme Court will one way on some or all of this and give the government some part of it. But if you break it all, you’re done.
Mary McCord: Hard effects. Yes.
Andrew Weissmann: And you know, that’s, I think, in some ways, is sort of a metaphor for the entire four years.
Mary McCord: That’s true.
Andrew Weissmann: Because I don’t know how this gets put back together.
Mary McCord: Yes. One of the things I did want to mention because regular listeners will know that pretty frequently, in fact, we did it last Thursday night here at a live event in D.C., pretty frequently, we cite from Justice Jackson’s concurring opinion in the Youngstown steel seizure case. This is a case where President Truman tried to seize the nation’s steel mills during the war to prevent strikes from hampering.
Andrew Weissmann: Korean War.
Mary McCord: Yes. Right.
Andrew Weissmann: Yes.
Mary McCord: The Korean War to prevent strikes from halting the steel production for the war effort. And this is where, as you talked about last Thursday night, the majority opinion was fairly straightforward. No, you can’t do it. But this concurring opinion of Justice Jackson really laid out what has become sort of the way we look at these things throughout history since then. And she cites it extensively.
Andrew Weissmann: Exactly. Although she cites it, Mary, correctly.
Mary McCord: Yes, that’s right.
Andrew Weissmann: Because we --
Mary McCord: Not in part.
Andrew Weissmann: We talked a lot about how this was cited by in the presidential immunity decision in a way that is so ironic because it didn’t take the lesson at all that Justice Jackson was giving. But you know what? This is my favorite concurring opinion ever.
Mary McCord: Yes.
Andrew Weissmann: I read it every single year. I read big pieces. If there’s anything to premium episodes, I read pretty extensive part of that.
Mary McCord: We have a whole discussion.
Andrew Weissmann: Yes.
Mary McCord: Yes. But she says, I’m looking at it here.
Andrew Weissmann: So, anyway, sorry to interrupt.
Mary McCord: No. No. No. Not at all. She’s like, the president’s power, quoting from the opinion, if any, to issue an order must stem either from an act of Congress or for the Constitution itself. She says where President Truman lacked both constitutional and statutory authority to seize the steel mills, the Supreme Court affirmed the district court injunction. Youngstown applies here. Defendants don’t even claim that the executive order was under the president’s constitutional powers. They instead attempt to fit it into some existing statutory authority, but that authority is lacking. So, we’re at that place where the president is just doing things that are outside of his authority that are contrary to Congress’s authority, that it is actually exerted when it enacted statutes that created these departments and agencies, created these programs, created their mission, funded them, et cetera.
Andrew Weissmann: This is just a good example of when you think about the last hundred plus days, there’s so much that’s been done by executive order, meaning Congress isn’t involved, the courts aren’t involved, it’s just the president doing stuff. And if it’s outside of the constitutional limits placed on the executive branch and there’s no congressional authority, essentially, he’s just doing it.
Mary McCord: That’s right.
Andrew Weissmann: And then it’s like, make me stop. Right?
Mary McCord: That’s right.
Andrew Weissmann: That’s the reason that you see this all being done through executive order with no other branch of government. And so, we’ve talked about this idea of the unitary executive, but what we’re really seeing is the unitary government, the idea that I just get to do whatever I want. And what Judge Illston is saying is, no. First of all, the courts have a role in deciding that issue, whether you have the authority. And here, there’s no constitutional authority, and Congress has a role here, and you’ve usurped that.
Mary McCord: Right. Yes. Yes, exactly. Last final words on this. She says, this is not an instance of the president using some inherent authority to exercise general administrative control of those executing the laws because Congress has passed no agency reorganization law for the president to execute. Congress may choose to do so, but as of today, Congress has not. So, again, temporary restraining order, it’s a preliminary ruling that president exceeded his authority. It’s good for two weeks. She set an expedited briefing schedule on a preliminary injunction, so this is not the end of this. Meanwhile, of course, we’re up in the court of appeals at the same time.
Andrew Weissmann: Exactly. So, we have now flagged for our listeners. This is a huge case to watch. There’s no question. This is not sort of the end of the road, and we will come back to this. But this is really, in many ways, the big one in terms of the size and functioning of the federal government.
So, with that, let’s take a break, and then let’s come back because I can’t wait to hear about what is keeping you up on your day job, which is an upcoming --
Mary McCord: Everything.
Andrew Weissmann: -- Supreme Court argument. So, let’s take a break and come right back.
Mary McCord: Sounds good.
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Andrew Weissmann: Hey. Welcome back. Mary, there is an argument later this week, Thursday, I believe, in the Supreme Court of the United States. And I know that your group, and I think other groups as well, are going to be arguing birthright citizenship. Do you want to give us a recap of what’s at issue here? Because there’s both the merits and then in many ways, a lot of what we’ve been talking about is these procedural hurdles and what’s at stake and what’s coming up here.
Mary McCord: In fact, I would just say, at least technically, the merits are not at issue in terms of a final decision on whether the executive order purporting to deny birthright citizenship to any children born unless at least one parent is a citizen or a lawful permanent resident. That is not what’s technically in front of the court because that’s an issue that the government did not seek cert on. They did not seek review of the court on, and I’ll explain that.
So, listeners will recall that on January 20, late in the evening, that’s when the president issues this executive order. I think to some people’s surprise, it also applied to children, not just of undocumented residents, but of people who are here lawfully with student visas, work visas, temporary protected status, pending asylum applications, people who actually have work authorization and might be here for years under that work authorization. So, it even applied to their children.
Andrew Weissmann: So, what he’s saying is for those people who are here lawfully, no question, they’re here, they do everything right, they’re here lawfully, they could be here for years, you’re a graduate student at, let’s say, Stanford, and you have a child.
Mary McCord: That’s right.
Andrew Weissmann: And the government is saying that person is not entitled to citizenship.
Mary McCord: Citizenship.
Andrew Weissmann: Okay. That’s one category. What’s the other category?
Mary McCord: Well, it’s also people who are here not lawfully. Right?
Andrew Weissmann: Okay.
Mary McCord: People who are here without documentations. But let’s just be clear, and we’ll get to more of this when we really do get to the merits. But like that historically, since the Fourteenth Amendment, which remember, we fought a Civil War, and the Fourteenth Amendment and giving birthright citizenship was a major part of that, what we fought that Civil War about, reversing the Dred Scott decision, which did not give citizenship to African Americans in the United States. That’s what this constitutional amendment was about. The Supreme Court, 127 years ago, said birthright citizenship means what it says. It means when you’re born on our soil, unless you’re like the child of a diplomat, right, for which the rules are different or you’re on sort of an alien vessel, those types of weird exceptions. Otherwise, you’re a citizen. So, this has been the law of the land for 150 years.
Andrew Weissmann: And the child, of course, the child is here lawfully.
Mary McCord: Born here. Right.
Andrew Weissmann: I mean, right.
Mary McCord: They’re not unlawful.
Andrew Weissmann: Their child is born here. They’re not unlawful.
Mary McCord: That’s right.
Andrew Weissmann: I mean, the parent might be, but the child isn’t.
Mary McCord: That’s right.
Andrew Weissmann: And that’s what we’re talking about is the citizenship of the child who is born here.
Mary McCord: Of the person born here. That’s right.
Andrew Weissmann: Just because you have the child here doesn’t mean you suddenly are going to be a citizen too. So, okay. So those are the two categories.
Mary McCord: That’s right.
Andrew Weissmann: But as you said, that’s not what’s before the Supreme Court.
Mary McCord: Right.
Andrew Weissmann: So, what on God’s green earth is the Supreme Court going to be deciding?
Mary McCord: So, what happened is immediately various folks sued. We, at ICAP, the Institute for Constitutional Advocacy and Protection at Georgetown Law, we filed one of the lawsuits the very next day, and it was on behalf of five pregnant mothers, one of which has now had her baby. And that baby is a citizen.
Andrew Weissmann: Mazel tov.
Mary McCord: Yes.
Andrew Weissmann: As we say.
Mary McCord: As you say. And then two large membership organizations that provide support services to immigrants. One is CASA, based out of Maryland that has members that are from all over the world. Even though it’s called CASA, which is of course a Spanish word, it is not all immigrants from Latino countries or Spanish speaking countries. It is immigrants from all over the world. Some are documented, some are undocumented. And, also, on behalf of Asylum Seekers Advocacy Project, which represents asylum seekers. And again, when you have a pending asylum application, you have lawful status. So, hundreds of thousands of members in all 50 states. But groups of states also sued.
So, two groups of states totaling, I think, 22 states also sued saying we are injured as states when, you know, new babies, their status is unclear or they’re not citizens. And that might mean certain benefits like Medicaid and getting a Social Security number that triggers us providing benefits is all thrown into disarray. So, we’re also injured. All of us got nationwide injunctions almost immediately within the first two weeks.
Andrew Weissmann: So, these are separate cases that were brought, and then they’re sort of now being heard together --
Mary McCord: All at once.
Andrew Weissmann: -- at once, which makes sense in front of the Supreme Court.
Mary McCord: Yes. And so, the issue is each court to rule on this said this violates the plain text of the Fourteenth Amendment. It violates Supreme Court precedent, the decision a 127 years ago by the Supreme Court in a case called Wong Kim Ark. It violates our history and traditions, and it actually violates also a congressional statute. Not every judge got to that, but Congress in 1940 also enacted a statue in the 1940s that has the same language as the Fourteenth Amendment. And they made clear that this was supposed to apply to everyone born here except diplomats.
Andrew Weissmann: So, you all got nationwide injunctions.
Mary McCord: Right. And that’s the issue in the Supreme Court.
Andrew Weissmann: What’s the problem and what’s the problem there? What are the sort of two sides of that debate?
Mary McCord: The government immediately said, look, we’re appealing the decision about the Fourteenth Amendment, but right now, we want to stay the injunction in so far as it’s nationwide. We think it should just apply to those 22 states, to the five pregnant mothers, and to the members of the organizations who we described in our complaint. In other words, we gave some illustrative examples of members and their status. So that would reduce it to what state you’re in and whether you’re a member of ASAP or CASA because the other alternative was at least restricted to just those members, so --
Andrew Weissmann: So, it’s whack-a-mole. So, we’re back to what we talked about last week, which is that if they win, it’s like, okay, the monkey wrench that they’re throwing in is that you now have to play whack a mole around the country and you have a quasi-quilt of laws. And you know what’s a good argument? And I’m sure non-lawyers listening to this are like, you know what, the Supreme Court’s hearing these cases together for a reason, because it makes sense to hear them together to have one decision.
Mary McCord: Yes. Uniformity.
Andrew Weissmann: If they were to rule for the government, it’s like saying, no, let’s hear them seriatim --
Mary McCord: Yes.
Andrew Weissmann: -- and have lots of different decisions in different courts. I mean, --
Mary McCord: Thousands and thousands of cases. Right? That’s right.
Andrew Weissmann: Yes.
Mary McCord: So, and it’s interesting because the government briefs this as not at all about birthright citizenship. I mean, they have a couple pages, but they start out their briefs with basically the argument district court judges have run amok. They’re out issuing nationwide injunctions willy-nilly. We’ve had more --
Andrew Weissmann: But they liked that. I thought they liked that when they were suing the Biden administration and they got nation --
Mary McCord: No. Some people don’t like that. Yes.
Andrew Weissmann: So now just to be clear, this idea of nationwide injunctions is one that when whoever is sitting in the White House.
Mary McCord: Nobody likes them when they’re in government. Nobody likes it.
Andrew Weissmann: Right. Exactly. So, it is something that people generally take on. It is a little rich that this group could suddenly be like, my god. I can’t believe that there are nationwide injunctions when like a New York minute ago, they were doing this when it was seeking President Biden in the office.
Mary McCord: Yep.
Andrew Weissmann: But I’ve read your papers. And obviously, you know, needless to say, they’re phenomenal. But I thought one of the points that you made was whatever you might think about some cases involving nationwide injunctions and whether there should be limits on it, this is not a good case for that argument.
Mary McCord: That’s right.
Andrew Weissmann: That this makes no sense. This is why nationwide injunctions make sense. I mean, --
Mary McCord: That’s right.
Andrew Weissmann: I’m going to turn it to you. Like, you gave such good examples of, like, if there was not a nationwide injunction here, what would it mean?
Mary McCord: The chaos, right, of how do you prove? And not just those who are subject to the order would have difficulty proving that their child gets the benefit of the injunction. But U.S. citizens, everyone would have to somehow prove up that their child is a citizen. That also would be the case even if, you know, if any bit of this executive order were to ever go into effect. It’s like everyone is now going to have to have something besides a birth certificate to establish citizenship. But on this temporary basis to have it operate in some states and not others, and in the other states, it’s about whether you were a member of ASAP or CASA, whether you show a membership card, and what if the person at the hospital is like, I don’t know what this membership card is. Or the local office who provides some sort of, you know, identification or benefits, et cetera, is like, I don’t know what this card is. So chaotic, chaotic.
Andrew Weissmann: And chaotic with an element of cruelty.
Mary McCord: Of course.
Andrew Weissmann: I mean, this again goes back to the Ozturk poignant comments she made. I mean, it’s needless harm to these people around the country who now will not know what is their status, and everyone has to suddenly run to court.
Mary McCord: And also, let’s contrast that with just allowing it to be a universal nationwide injunction. Is the government harmed? This has been our system ever since the Fourteenth Amendment, right? So, when we talk about preserving the status quo, we’re talking about preserving what has been in place ever since the Fourteenth Amendment, what has been affirmed by the Supreme Court, what has been affirmed by Congress, you know, what people have relied on throughout all of that history.
So, there’s no harm to the government from having suddenly to not be able to implement this executive order, which completely seeks to redefine the Fourteenth Amendment. That has been the state of affairs for a very long time. So, we will see.
Andrew Weissmann: Well, Mary, break a leg.
Mary McCord: Yes. There’s some reason that the justices decided to hear the case. So, we’ll get a lot more when we hear argument. My colleague, Kelsi Brown Corkran, Supreme Court advocate, our Supreme Court director here at ICAP will be arguing and we’ll be all listening on tenterhooks. And we’ll talk much more about it then.
Andrew Weissmann: Okay. And so, Mary, again, local news.
Mary McCord: Yes. Local news.
Andrew Weissmann: It’d be talked down the street of the Supreme Court of the United States. But if you just go down, you know, a little bit to the district courthouse, there is, right next door to that, the U.S. Attorney’s Office here, which is sort of a hybrid federal state thing because it’s all of the District of Columbia, which does federal cases and local cases because of the unique nature of the District of Columbia.
Mary McCord: That’s right.
Andrew Weissmann: And we had big news because Ed Martin had been nominated and serving in a temporary role as the U.S. attorney, but his nomination started getting pushback from all sorts of places, but including then from members of Congress. And it seemed like he was not going to get what’s called out of committee because he was not going to get enough votes to get to the floor for a full vote. And so, the White House withdrew his nomination. So, what happened? Who is the now the interim person? And what is Ed Martin’s new role going to be?
Mary McCord: Yes. So, you know, and a lot of that opposition coming from senators, including most recently before the withdrawal of the nomination from Senator Thom Tillis, a Republican from North Carolina, was his position, frankly, on January 6. He was not only a proponent of the false claims about a stolen election, but he had actually defended some of the January 6 defendants. He supported the pardons and the dismissals. He’s the one who orchestrated the dismissals of any pending cases on direction from the president, and he had fired all of the January 6 prosecutors, those who prosecuted the people who attacked the Capitol, all of those who were under two years of tenure because they were in probationary status and he thought he could do that. So, --
Andrew Weissmann: And just to be clear of that litany of things, if you put everything aside other than he had been a defense lawyer for people on January 6, that’s great and fine.
Mary McCord: Yes.
Andrew Weissmann: That is like just so everyone understands.
Mary McCord: That’s right.
Andrew Weissmann: Defense lawyers --
Mary McCord: It’s not the fact that he defended people. Yes.
Andrew Weissmann: Exactly.
Mary McCord: That’s right.
Andrew Weissmann: Like everyone is entitled to a defense. And frankly, even the people who sort of sometimes most needed are people who are sort of held up to vilification. And that’s true of the people who attacked the Capitol on January 6. I mean, obviously, everyone has very strong views of that in terms of being horrendous. That’s not the issue. Right?
Mary McCord: Right. There were also a lot of ethical issues that had been raised. Allegedly, he did not report all of his public speaking engagements on his responses to questions promulgated by the judiciary committee. He didn’t report --
Andrew Weissmann: RT. RT.
Mary McCord: Exactly. All of his appearances on Russian Broadcasting Networks, a lot of those things that senators who are reviewing nominations take super seriously. So now we know he will be in a presidentially appointed position, but one of those positions at Main Justice that does not require Senate approval. And that is going to be leading the weaponization of government committee, which is this task force, I guess. He’s also going to be an associate deputy attorney general within the Office of the Deputy Attorney General and --
Andrew Weissmann: Yes. Wait for it.
Mary McCord: The pardon attorney.
Andrew Weissmann: So, he’s the poohbah.
Mary McCord: Right.
Andrew Weissmann: He’s the poohbah of the Department of Justice because it’s like --
Mary McCord: Yes.
Andrew Weissmann: -- he has many, many different hats.
Mary McCord: Many hats.
Andrew Weissmann: I have to say the weaponization committee is, like, straight out of George Orwell in 1984, --
Mary McCord: It is.
Andrew Weissmann: -- which is war is peace. And --
Mary McCord: Right.
Andrew Weissmann: -- it’s just amazing.
Mary McCord: In other words, we’re going to get rid of the weaponization by the Biden administration by weaponizing the Department of Justice against the people in the Biden administration and others we think wronged us. So, it is actually, unfortunately, another sort of dangerous position for him to be in, but he will be under some leadership. We’ll see whether that’s a guardrail or not. So, way more to come on that.
But in D.C. right now, the president has appointed as an interim U.S. Attorney, Jeanine Pirro. And for those who are like, wait a minute, that sounds familiar. Yes, the Fox News host.
Andrew Weissmann: Well, --
Mary McCord: The host.
Andrew Weissmann: Obviously, that’s where if you’re looking for people --
Mary McCord: Yes.
Andrew Weissmann: -- with the right experience.
Mary McCord: Look to Fox News.
Andrew Weissmann: Where better to look.
Mary McCord: Pete Hegseth.
Andrew Weissmann: Right. Exactly.
Mary McCord: Our attorney general still is regularly on, I think, many nights a week.
Andrew Weissmann: So, we’ll come back and talk more about Jeanine Pirro because I think there’ll be a lot of scrutiny to her background --
Mary McCord: Yes.
Andrew Weissmann: -- and her qualifications, as well as there’s a technical issue about the appointment that we’ll come back and talk about.
Mary McCord: That’s right.
Andrew Weissmann: So that’s sort of a little bit of a flag for things to keep an eye out for.
Mary McCord: Little teaser.
Andrew Weissmann: So, Mary, I think we have to wrap because I know that you have been doing a lot of moots.
Mary McCord: Yes.
Andrew Weissmann: You know, these Supreme Court arguments don’t just happen. There’s lots of, you know, so-called murder boards --
Mary McCord: Yes.
Andrew Weissmann: -- where you sort of practice the questions that justices may ask in preparing. So, you are doing God’s work.
Mary McCord: There’s another one tomorrow.
Andrew Weissmann: So, break a leg. I can’t wait to listen in. And just, you know, for everybody, Mary made reference to this, but the Supreme Court arguments are something that you can listen to.
Mary McCord: That’s right.
Andrew Weissmann: And so, you can go to the Supreme Court of the United States website and --
Mary McCord: Supremecourt.gov. Very easy.
Andrew Weissmann: Exactly. And that is still running and operative.
Mary McCord: That is.
Andrew Weissmann: It is not something that the executive branch has control over. It is a judicial function. And so, you can listen to the argument, and you could hear the lawyers on both sides. One of the lawyers will be from ICAP, one of Mary’s colleagues.
Mary McCord: One will be from the state of New Jersey, and then one will be the solicitor general of the United States, John Sauer.
Andrew Weissmann: Exactly. And so, you’ll get sort of the back and forth on the pure legal issue, and it’ll be interesting to see how much the merits sort of infect or don’t infect that --
Mary McCord: That’s right.
Andrew Weissmann: -- that pure legal discussion of the nationwide injunctions. But for those people who are it’s like a, it’s an assignment.
Mary McCord: Yes. And if you’re here, you can go. However, I expect the line will start to get into the Supreme Court the night before. So, you got to kind of be prepared to camp out.
Andrew Weissmann: It’s like a rock concert.
Mary McCord: That’s right.
Andrew Weissmann: And this is one where it’s definitely to be continued because we love much more, and we definitely will talk about that argument. And I’ll be really interested to hear your take on the various justices and how you think their argument went.
Okay. With that, thanks so much for listening. And remember to subscribe to MSNBC Premium on Apple Podcasts to get this show and other MSNBC originals ad free.
You’ll also get subscriber only bonus content, like the episode we just released that was recorded in front of a live audience in Washington, D.C., where we talked about Youngstown. How’s that for teaser, Mary?
Mary McCord: That’s good. One of the best cases ever to talk about. And look out for another premium episode dropping this Thursday from Trumpland with Alex Wagner as she welcomes Chris Hayes.
This podcast is produced by Vicki Vergolina with production support from Max Jacobs. Our audio engineer is Katie Lau. Our head of audio production is Bryson Barnes, and Aisha Turner is the executive producer for MSNBC Audio.
Andrew Weissmann: To send us questions, you can email us at mainjusticequestions, that’s one word, mainjusticequestions@NBCUNI.com and search for Main Justice wherever you get your podcasts and follow the series.
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