New Podcast Episode: Why Are We Here?
Dan and I talk about Trump v. CASA with Sarah Isgur
The latest episode of the Divided Argument podcast, Why Are We Here? is live:
We celebrate the 100th episode of the podcast with a special cross-over episode with Sarah Isgur at Advisory Opinions! Sarah, Will, and Dan break down today's blockbuster decision in Trump v. CASA, forbidding universal injunctions (and not saying much about birthright citizenship).
You can also listen to the episode in AO’s feed with their intro music and their title (“SCOTUS Sides with Trump”).
Feel free to comment below! (Or join the lively discussion on Sam’s great post.)
Some questions/comments based on the podcast and reading the opinion:
1. Say Trump issues an EO authorizing ICE agents effective beginning 5:00 pm today to execute at the time of apprehension any illegal or suspected illegal immigrants ICE comes across. Based on the CASA ruling, how does such an order get stopped before anyone is executed?
2. If I heard him correctly, Professor Baude sounded okay that the government could enforce laws that are almost assuredly illegal until the case makes it way to a final SCOTUS decision on the merits. That would give the President a huge amount of authority and result in really challenging outcomes (e.g., see item #1).
3. Did the majority opinion also imply that SCOTUS can't issue universal junctions? I understand that SCOTUS merit decisions become precedent and thus can act like universal injunctions. But I also understood emergency docket decisions are not precedents.
One thing that I did not understand - if the opinion was essentially answering the statutory interpretation question of whether the 1789 Judiciary Act gives district (and circuit?) courts the authority to issue universal injunctions, and the court concluded that it does not, why would the Supreme Court have that power? The thrust of Kavanaugh's opinion was that the Supreme Court should serve the function of deciding interim status of laws, which seems plausible as a policy position, but I don't understand what the legal basis could be for the Supreme Court to have that power without the district courts also having that power. (Edit: I also see McGoogles had a similar question)
Also, no one suggested the name "the Denny's docket" as an option in the mix with "shadow docket" and "short order docket!"