A (0:00)

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Relax everybody. Donald Trump heard you. He saw and read the polls. He's got the message and he's turning over A new leaf. You believe that one? No. He just filed his 12th emergency application with the United States Supreme Court, putting him on collision course again with the United States Supreme Court on issues related to immigration. This while they've already issued two major decisions against him in the last three weeks. 9, 0 telling him to go get Abrego Garcia out of that gulag in el Salvador. And 7 to 2 telling him stop sending people to El Salvador without due process. And now Donald Trump decides now's a good time because, you know, he's always, he has exquisite timing. Now's a good time to take an emergency application that has to first be reviewed by Justice Kagan out of California. And a decision by Judge Chen in San Francisco that made sure that Donald Trump and Kristi Noem, having called Venezuelan scum and dirtbags, that they wouldn't be able to revoke their temporary protective status that the prior administration has put in place and deport all these people back to the, back to Venezuela. I'm going to cover it all right here on Legal AF and the Midas Touch Network. I'm Michael Popak. Let's get into it. In March, Judge Chen, an Obama appointee judge up in the in San Francisco in the Northern District of California federal court, issued a temporary restraining order. He looked at the facts, he looked at the law. And when he came away with is, I just took a look at the Homeland Security director, Kristi Noem, 20 days into her being appointed, going on as her Ice Barbie mode, her cosplay, talking about Venezuelans being scum and dirtbags and they need to get them off the street. Let me do a little side moment here. I have many Venezuelan friends. I live in Miami, Venezuela. And the Venezuelans in Miami are hardworking, beautiful people that contribute to the economy that are not criminals and should be upheld as model citizens. You know, they have large populations in and around Trump's golf courses in Miami is a lot of Venezuelans. So to see him go after and attack their friends and families and relatives and claimed that they're all criminals and they're all members of the Trend Aragua criminal gang, just like he claimed that all Haitians were eating pets in Springfield, Ohio, was a bridge too far for Judge Chen. Judge Chen said this decision to cancel the Homeland Security director Mayorkas from Biden's decision to extend temporary protective status, which by the way, was a Republican policy established by the first George Bush in 1990, that looked like it was motivated by hatred for Venezuelans, calling them scum and some unsubstantiated allegations that they were all gang members. He said in reality, they contribute mightily to the US Economy in the billions of dollars. They commit crimes at much lower rates than Americans. They have higher this group of people have higher educational attainment than the average American. Right. We're not, again, we are not talking about criminals. We're talking about human beings that want to be in this country and produce and be productive and pursue the American dream. And so when they canceled 15 days in the temporary protective status for these people and for the Haitian community, all the lawyers ran to court. And what Judge Chen said is, I understand your argument that there can't be judicial review under the way the statute was created by Congress of certain designations. But I can take a look at it from a constitutional strict scrutiny standpoint and determine that you have violated the law. That's what federal judges do. You know, that's the checks and balance of this system. And if you look carefully at the same statute that they're relying on in order to deport these people, it also says Kristi Noem doesn't have the jurisdiction, doesn't have the power to reverse the decision of the prior administration. So if they're going to argue a court can't take a look at it, what are you supposed to do when she violates the statute because she tries to reverse what a prior secretary ruled? So you can make your own decisions, but you can't undo what's already been done. The way the statute is structured now, for the 12th time in this administration, they have filed an application with the United States Supreme Court. It comes up first through an associate justice that's assigned to that particular region of the country. So for California and the Ninth Circuit, it is Justice Alina Kagan who sits in the moderate Democratic wing of the Supreme Court. She is given the other side off the application, which is the coalition, the National TPS Temporary Protective Status Alliance. She's given them until the 8th of May, you know, in about six days to file her their responsive brief. With those two pieces of paper in hand, it will then either stay with Kagan for a determination or she will refer it over to the full court. We don't know yet. Why is Donald Trump bringing these emergency applications before I read from this one and tell you my thoughts of how this is going to play out? Because the emergency application takes away the normal deliberative process, vote gathering process of a normal appeal. In a normal appeal at the United States Supreme Court, which 99% of the cases occupy that world, there is a writ of certiorari or an application to the United States Supreme Court for appeal. They take very few, few appeals. They take about. There's tens of thousands of lawsuits in this country. They take 60 to 70 cases a year. That's it. Maybe a few more because of Trump. The vast majority of them. There's an opening brief, there is a middle brief, an opposition brief, there is a reply brief. You have three briefs, then you have oral argument. And it's months between those events. Then the court, after oral argument, starts an internal process of caucusing, vote gathering, lobbying each other, caucusing with each other, circulating competing orders until they reach a consensus and an opinion is assigned to one of the justices who writes it, who's in the majority of the vote that they've taken that process. There's sometimes vote flipping and vote getting, and people are able to convince the hearts and minds of their brethren to turn and come over to their side. Donald Trump doesn't want any of that. He already knows that if he takes that process away, the Supreme Court doesn't operate well in an emergency environment. Let's just say my wife and I are accumulating hundreds of baby and family photos every day. But how to display them? And we had this big long wall leading to our bedrooms that we said would be perfect for a gallery wall of a timeline from like the beginning of our relationship and then marriage and pregnancy and birth and then another whole wall for our travels with and without the baby. But how to do it? And then I found our next sponsor, Mixtyles, with probably the easiest website I've ever used. Click the array shape for your photos, pick your frames, pick your photos, and in like five minutes or less, you are done. And now those large walls that were a little bit foreboding before are filled with happy memories gallery style and is one of our favorite spots in the house. I just ordered a mix set of 10 of the baby in the last couple of months and let Mixtyle's program do the rest. In terms of sizing to give us that carefree gallery look we were looking for. Decorating your walls can feel overwhelming, but Mixtiles makes it fast and easy. 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Mix tiles aren't just the easiest way to frame and hang your photos. They turn your memories into meaningful art. They transform any space into something personal, warm and full of life. Every tile captures a cherished moment, a shared laugh, a sense of belonging. It's more than decor. It's your story on display. Turn your favorite memories into stunning, affordable wall art. For a limited time, our listeners get 35% off on all orders above $139. Just head to mixstyles.com and use code legal AF and you're all set. That's code legalafixtiles.com and after you buy, do us a favor. When they ask you where you heard about mixtyles, tell them it was from our show. The Supreme Court doesn't operate well in an emergency environment. They are a tortoise. They are deliberative and when you force them to be a racehorse or a hare, then you get smoke coming out of their ears and circuit breakers are tripped. But that's what he wants because he knows there's internally, internally this division. We all can see it in the body language, in the oral arguments, in the opinion writing. He knows he's got a reliable four votes in his favor for almost anything that he does. Alito and Thomas for sure, Gorsuch almost always and Kavanaugh almost always as well. That's four votes. You only have to count to five in order to get your ruling in your favor at the Supreme Court. At a nine. He knows that the Democrats and moderates and non Trump maga have only three votes in their pocket. Ketanji, Brown Jackson, Elena Kagan and Sonia Sotomayor. So the middle of the court becomes very pressured, whatever that middle is. It's obviously Amy Coney Barrett, right, right of center and John Roberts right of center. And so he'd rather Trump fight for one of those two. He's only got about 500 to get his fifth vote. We, on the other hand, have to bat a thousand. We have to run the table, we have to get Amy, Coney, Barrett and Roberts. Sure. Occasionally Kavanaugh peels away or Gorsuch peels away in a weird decision and you see six to threes or seven to twos or something like that. But I'm talking about the hard cases like this. Now, this might not be that hard given the immigration rulings already 90 and 72 against Donald Trump. I'm not sure the emergency application process is going to be of benefit to Donald Trump, but that's why he's doing it. That's why we've seen more emergency applications to the United States Supreme Court by this president than any other in history, especially at this moment in time in the first administration. John Sauer, who is the former appellate criminal lawyer for Donald Trump, is now our Solicitor General, the number four in the Department of Justice and the head of the Solicitor General's office. They are that role, which is to advocate on behalf of the United States of America before the Supreme Court is often referred to as the 10th justice. We just heard him argue, we had it here, we had it over on Legal a f the YouTube channel because we're doing all the oral arguments of the United States Supreme Court there. He just argued in a case involving the separation of church and state concerning an Oklahoma ruling about whether there's going to be religious, there's going to be funding for religious charter schools or not from taxpayer dollars or does that violate the establishment clause. Now he's filed his brief, which I have right here, which is arguing to the United States Supreme Court, picking and choosing from the temporary protective status program established by Republicans in 1990, that there's a provision that says that the designation issues can't be reviewed by anyone and no court. It's a non reviewable position. I'm not sure that's constitutional, by the way, for Congress to say a court cannot review something in our delicate checks and balance system. We'll leave that for aside for a minute. That's one challenge. But also if you read deeper in the statute, which of course is ignored by John Sauer, it also says that there's no power of the next administration's Secretary of Homeland Security to flip the switch and throw over the game board and rule differently than the prior, that she has to let it ride for the next 15 or 16 months for the decision to give further extended temporary protective status to Venezuelans. And so this is what they say in their brief. I'll just read you, I'll just read you a little bit of it here. It says the temporary Protective status program implicates particularly discretionary, sensitive and foreign policy latent judgments of the executive branch regarding immigration policy. Congress has expressly authorized the Secretary to provide temporary relief to aliens who cannot safely return to their home nation due to a natural disaster, armed conflict or other extraordinary and temporary conditions in the foreign state. It commits to the Secretary's role discretion such judgments, sole discretion such judgments as to whether the conditions in a particular country are extraordinary. Right. And then he quotes from one aspect of it that says there is no judicial review of any determination of the Secretary with respect to the designation or termination or extension of a designation of a foreign state. I'm not even sure that provision actually applies to what he's talking about. This isn't about designation or termination or extension of a foreign state. It's also completely inconsistent and I'm sure it'll come up in the record. By Donald. Donald Trump spends a considerable amount of time claiming that Venezuela is an enemy combatant and at war with the United States. That it's been taken over by the Trende Aragua criminal gang and therefore they are enemy combatants. That he can use the Alien Enemies act to deport people without due process to a gulag in El Salvador. Well, how does that square? How can you say on one hand that Venezuela is corrupt, has been co opted by a criminal terrorist narco drug gang, and then send people back there and claim everything's fine and idyllic in Venezuela, it's all good now you can go home. That their inability to even touch that or reconcile that. I'm sure it's going to be front and center in the decision making. Here's my prediction. I mean, could Kagan take this on herself? Given the last two decisions of the Supreme Court against the administration? Nine, nine nothing and seven to two, she could. I think there's a 50% chance that Kagan is going to just make this ruling on herself and reject the application and start, start putting an end and sending the message back to the Trump administration, stop bringing us phony emergencies. This is not an emergency application. This is going to continue. Take your normal appeal if you want to file a writer, Sharari, and bring it up the right way. We'll take a look at it in the future. But this is not an emergency. You know, your, your calling it so doesn't make it so. I think she does that. Maybe it's even 60% chance. But because of all the public, you know, perception about the shadow docket, she may feel she has to turn it over. To the other eight. And then after the full briefing, we're going to get an order. We're going to know relatively soon after the 8th, she's either going to issue an order that she kept it herself and denied it or she sent it over to the full eight. Follow us here on Midas Touch Network on Legal af. While you're here, come over to Legal a f the YouTube channel and hit the free subscribe button there. And we have an amazing new Legal AF substack. Five or six things I just posted in the Legal AF substack. This particular filing that I just talked about about Jon Sauer for those that are interested. So until my next reporting, I'm Michael Popak. In collaboration with the Midas Touch Network, we just launched the Legal AF YouTube channel. Help us build this pro democracy channel where I'll be curating the top stories the intersection of law and Politics. Go to YouTube now and free subscribe at Legal A F MTN. That's at Legal AFMTN.