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Main Justice
"Generally" We Follow the Law
00:58:08
The Supreme Court weighs in on Trump’s executive orders. And due process is still at issue.
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Andrea Canning
DATELINE True Crime Weekly. Andrea Canning and the Dateline team cover breaking crime news around the country. And now a special series with daily updates from the trial of Sean Combs.
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Chloe Meloss
I'll be talking to NBC News correspondent Chloe Meloss every day after court about what she's seeing inside the witnesses, the evidence and what it all means.
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Andrea Canning
DATELINE True Crime Weekly. Listen now, wherever you get your podcasts. MSNBC Films presents a six part documentary series, David Frost versus On the next episode, Elton John.
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Andrew Weissman
It's okay to ask for help. I didn't think it was because I thought it was a sign of weakness.
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Andrea Canning
Sunday at 9pm Eastern on MSNBC.
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Andrew Weissman
Hello and welcome back to Main Justice. It is Tuesday morning, May 20th. I am Andrew Weissman and I'm here with Mary McCord.
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Chloe Meloss
Good morning, Andrew.
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Andrew Weissman
Hi, Mary. How are you?
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Chloe Meloss
I am okay. Honestly, to be honest, I'm feeling a little stressed. We have so much to talk about. It's all a big jumble in my head. I went for a run to kind of sort it out, so I feel a little bit better. But I've got notes in a notepad, which I rarely do. I've got my screen split. I've got another screen. I got my phone with another screen just to try to keep myself organized. And I cannot promise I will stay organized.
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Andrew Weissman
I also, because there was so much news that was breaking and we thought we were going to and we are going to cover sort of two things in the Supreme Court from Thursday and Friday. And first and foremost, we're going to cover the birthright citizenship argument because I cap your organization, I shouldn't say your organization, the organization that you're affiliated with, you know, was obviously one of the main people behind that case. So we're going to obviously talk about that. And then there's another Supreme Court case. But then like you, there's just so much that's been happening. And when we were just joking about titles for the show, I just realized I thought of another one. Oh yeah, shit show.
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Chloe Meloss
Oh yeah. It's probably better than shenanigans.
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Andrew Weissman
I know we were talking about shenanigans, but it sounds a little too mischievous and not serious enough for what's going on because we have the charging of a member of Congress. We have a series of events involving immigration. I mean, there just so many things like you let's parse out why we're feeling this way and what it is that we're going to talk about and go through it. Obviously, we'll start with the birthright citizenship argument on Thursday. I'm dying to hear your reaction to how that went and your take on the various justices.
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Chloe Meloss
Yeah, let's dig in then. So Thursday, as you indicated, and as everybody knows, if they listened to us last week, Thursday was the oral argument in the birthright citizenship before the Supreme Court. As we discussed last week, there were three cases in the Supreme Court. Two of them were cases brought by groups of states representing 22 different states who had challenged the birthright citizenship's order as being unconstitutional, contrary to binding supreme court precedent for 127 years. Also contrary to a congressional statute and historical practice by the executive branch since the 14th amendment was adopted. The third case was the case, Andrew, that you mentioned, where ICAP is co counsel to representing five pregnant women, two immigrants rights organizations, the CASA, and asap, the Asylum Seekers Advocacy Project. And so we were arguing as well. And the issue, as listeners know, was actually not the constitutionality of President Trump's attempt to redefine birthright citizenship. Redefine what the 14th Amendment means in order to deny citizenship to children born to parents unless at least one of the parents is either a citizen or a lawful permanent resident. And that included not just denying citizenship to children born to parents who are here undocumented or unlawfully, but also denying citizenship to children of parents who are here lawfully but temporarily. That could be with a student visa, a work visa, a tourist visa, a temporary protected status pending asylum, many different legal statuses with work authorization, et cetera. That's the substantive issue. That is not what was in the Supreme Court. What was in the Supreme Court was the government asking to restrict the injunctions that we all obtained in all three of our cases so that they would not be nationwide, because in each of the three cases we obtained nationwide or universal injunctions, meaning that this executive order could not be enforced or put into effect anywhere in the United States. What the government wanted to do was, is to just restrict that to just the plaintiffs. So in the case of CASA and A$AP and the five pregnant women, that meant to those five pregnant women as individual plaintiffs. And the government actually wanted it not even to apply to all the members of A$AP and CASA. They wanted to just apply to the members we had described in our complaint to illustratively show how those members have standing. In the case of the states, they wanted to restrict it to just those states. And, and that means that if they were to get their way, we would have people who babies born, whether they were a citizen would depend on what state they were born in. And whether they were a child of one of these named plaintiffs or a child of a member of A$AP or CASA. All right, that's the backdrop.
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Andrew Weissman
Mary, I wanted to say something about that issue of when you say the government was asking for this procedural issue that actually sort of came up with Justice Kagan, I think most pointedly sort of saying, you know, government, if you get your way, you basically, you keep losing below, but you have very little incentive to bring this up to the Supreme Court because you're losing below. But if you go to the Supreme Court, you'll might lose once and for all nationwide. So there's very little incentive when you keep losing and losing and losing. And this case was such a good example of that, because they could have brought everything all at once before the Supreme Court. Like, what was your point about? The only thing before the court was this procedural issue. To me, it sort of made Justice Kagan's point, which was, I think most people listening to you, Mary, are like, this is so weird. If they really had the courage of their convictions, why weren't they trying to simultaneously get their view of the law heard at the same time? And so that seemed to me like, if you could maybe talk a little about Justice Kagan and also other justices, what you thought, were you surprised by any of it? And I guess I'll leave for the end. Any predictions?
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Chloe Meloss
Yeah, and I want, I want your reactions to this, too, because you know, at one point, the Solicitor General, John Sauer, and if that name is familiar to people, it's because John Sauer is also the same person who argued the Trump v. United States immunity case in the Supreme Court. I guess at this point, about a year ago, maybe a little longer, I think that was argued in April, if I'm not mistaken. So, yes, same John Sauer, because Trump did bring most of his personal attorneys into the leadership of the Department of Justice, he made the point, yes, we've done this, because this is such a clean vehicle for this court to address nationwide injunctions, what he perceives as a bipartisan problem of district courts really running amok and on slim records on emergency motions, issuing nationwide injunctions, which he thinks is a huge problem, because in, for example, February alone of this year, the various district courts across the country issued nationwide injunctions, more nationwide injunctions than, I believe, in the first three years of the Biden administration. So he says this is a clean vehicle. And for those who don't really know what that means, it means that he believed this case presents the issue of nationwide injunctions in a clean way for the court to issue some much more broad guidance about should a district court ever be able to issue a nationwide injunction? If so, what types of restrictions should there be, what kind of standards should have to be met and the things that he complains about. And there is something to be said about his argument that this is a bipartisan issue, because certainly during the Biden administration, for example, the Biden administration was frustrated when challengers to things the Biden administration was doing, things like student loan forgiveness and other things like that would run into court. Oftentimes they would run into a single judge district in Texas where they had felt like they were going to get a good result and ask for a nationwide injunction, and that one district judge would issue a nationwide injunction and the government would seek emergency relief in the court of appeals. So he's right that this is something that many times administrations of both parties don't like. But part of the problem there is that there are a few, not many, of these single judge districts where that allows for something called forum shopping, right? For a challenger to say, I'm going to go to this judge that I am pretty sure is going to rule my way and give me a nationwide injunction. That is not what happened in the birthright citizenship cases. We have rulings from judges in three different districts. None of those judges were in a single judge district. So it's not like any of the parties were like, ooh, I think Judge X is the judge I want, so I'm going to file in front of Judge X. Each was in a district court where it was a random assignment. And the judges in each of the courts appointed by different presidents, all issued nationwide injunctions. But nevertheless, he believed this is a clean vehicle. So a lot of the discussion was by all the justices. And this gets you to Justice Kagan's questions was about when, if ever, should we be able to have nationwide injunctions? But that necessarily caused several of the justices to. To be concerned about when are we going to get to the merits? They seem to be thinking, shouldn't we be getting to the merits faster? And by you coming here just on this issue, not on the entire thing, we're putting off the merits, and we'd like to get to the merits. And this is where Justice Kagan was saying, if you keep losing everywhere and what you want is no judge to be able to give a nationwide injunction, you want every person who is harmed by this order to. To have to bring their own individual case, Something that Justice Jackson called catch me if you can, right like, the government will keep applying this and everybody injured will have to find a lawyer, hire that lawyer, bring a case somewhere, get their own injunction. Meanwhile, as Justice Kagan says, government, you're going to lose in every one of these places, just like you're losing everywhere so far. But then you can, as the loser who would normally take this up on appeal and bring it to the Supreme Court to seek a final judgment, you can just decline to do that because you don't really want the Supreme Court to issue a final judgment that you lose. And that was her concern.
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Andrew Weissman
Yeah. Is that we're talking about then a mechanism to have people's rights not be vindicated, because the risk there is that, of course, people aren't all going to hire lawyers and be able to run around the country. We're seeing that exact phenomenon now in the immigration context. And so it's not just a question of delay, that it's going to take a while. And the issue of, like, how does it get to the Supreme Court if the government has no incentive, but the idea that because one court won't be able to put a stop to this before it gets to the Supreme Court, and it may never get to the Supreme Court, you are really placing this enormous burden on each individual, which could be tens of thousands of people. And the hypothetical that some justices kept on saying is it's a presupposes, let's assume that what's going on here is unconstitutional. Right. That this is something that's wrong. Then you're placing this enormous burden and the risk of. And the worry also about this on every single person. And it's the reason why you have class actions and it's the reason, the biggest pro. Reason for nationwide injunctions in a case like this. So, I mean, I found that pretty persuasive in this case. Obviously not just because you're my. My co host.
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Chloe Meloss
Well, you just raised, though, the core of a lot of this, which is John Sauer arguing essentially that we don't need universal injunctions because there's class actions that are available. And he brought this up first when Justice Sotomayor, I think, tried to explain with a hypothetical why this idea of everyone having to bring their own case didn't seem workable. She said, so when a new president orders that because there's so much gun violence going on in the country, and he comes in and he says, I have the right to take away the guns from everyone, and he sends out the military to seize everyone's guns, we and the courts have to sit back and wait until every named plaintiff gets, or every plaintiff whose gun is taken comes into court. And that's when the Solicitor General said, in appropriate cases, courts have certified class actions on an emergency basis. So a lot of the discussion then did focus, particularly through Justice Kavanaugh, on would a class action be appropriate here? And one of the things where I think there was quite a bit of pushback, including from conservative justices, is when they said, okay, are you essentially conceding that a class action in this case would be an appropriate way to challenge birthright citizenship? And John Sauer would never commit to that. And he said, well, right, we might oppose the class action. We haven't made a decision on that yet. We might oppose it. And now, I'm sorry, I can't remember if it was Justice Gorsuch or Justice Kavanaugh. And I've got my transcript up here on the screen, but it's 177 pages, and it would take scrolling for a bit to get to the question. And I've read the transcript three times, but still, still ask, okay, well, on what grounds? On what grounds would you oppose a class action? And he said, well, it might be on commonality, it might be on typicality. It might be on the adequacy of the class representatives. And people out there in podcast land are going, what are you talking about? But class actions are a mechanism, we should probably talk about this. Where cases can be brought by a class of people who the factual and legal issues that they have are common, right? So they're common to each other. There's typicality. Each person's situation is sort of good, representative of the others. There's typicality between them and those who are named as the class representatives, because every class action still has at least a few named people are good class representatives. Those are some of the criteria for a class action. And in some cases, that's a suitable vehicle. Right now. We're going to talk about that in a few minutes with respect to some of these immigration cases involving the Alien Enemies Act. But in some issues, that might not be the case. And we talked about things like the court talked about some other situations where that might not be a feasible alternative. And also situations like when you're talking about environmental cases where, say, there's some sort of toxic pollution being put in the air, you know, how do you define the class of people who are going to be harmed by that? Other situations where just the Solicitor General admitted, okay, in some cases there might be what he called indivisible harm. It's impossible to divide up the relief between certain plaintiffs and non parties, people who are not part of the case. And that's where he talked about things like environmental cases or redistricting cases, like voting redistricting cases, and things where if the court's going to provide relief, there are going to be a lot of non parties that benefit from that relief. And so, you know, a lot of the argument was about these kind of things. Are there alternatives? Are those alternatives adequate? Are they workable? But throughout it all, I'd say some of the top line points, we can talk about workability, and we should talk about workability. But I think some top line points are that several of the justices, and that included not only justices labeled liberal, but also justices labeled conservative, expressed an interest in getting this case more quickly to the merits. And in fact, a number of them even posed this idea of cert before judgment. And what that means is that the court could take up the case on the merits even before a circuit court of appeals rules on it, because the district courts have ruled in these three different cases. Each of them is substantively on appeal in a different circuit, the first, fourth and ninth Circuit. But those courts have not ruled yet. In fact, we're in the middle of briefing right now in the 4th Circuit in the CASA case. And so the idea here is some cases, and you know, the court has done this more and more and more frequently over the last few years, the court will go ahead and take up the merits even before the circuit rules, and that issue came up.
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Andrew Weissman
So I had various reactions, but on that point, I thought it was a bit rich when the Chief justice said, well, you know, this court can act very quickly. We can act very expeditiously. I was like, you can, but you also cannot.
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Chloe Meloss
You started with TikTok, right?
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Andrew Weissman
Yes, exactly. But I could give the example of the presidential immunity case, which, as you said, was. Was argued about a year ago, and there he and his colleagues delayed an actual executive branch criminal case, which normally is the kind of thing that you would seek to have decided expeditiously. So I thought that was pretty rich. When he suggested that the court could act very quickly. I also found two things striking again, going back to the presidential immunity case, I was struck by Justice Alito saying, look, the reason we need to do this, the reason we don't like national injunctions, is the district judges are. Are sort of doing sort of crazy stuff. And then the courts of appeals also are just sort of like, you know, I don't know what's going on there. So you had this Supreme Court justice denigrating the judicial system, which was exactly what he was doing in the presidential immunity case, where he said, we really can't trust the Department of Justice. We can't trust grand juries, we can't trust trial judges, we can't trust trial juries. That's why we need immunity. Because this is all sort of broken. And only I, Justice Alito, know it when I see it and know the truth and what the law is and can get set everything right. But I thought it was the exact same sort of anti system, anti law apparatus and bureaucracy that was going on. It was just remarkable to hear his denigration. And then third and final point was about Justice Kavanaugh, which I don't know what planet he's on. And this goes back to our starting about how we are so upset about things that we're seeing that are so antithetical to the rule of law. And we're covering in this episode, he went out of his way to say, look, this is just, you know, the White House under various administrations, acting in good faith. Various White Houses want to act quickly. And wouldn't you agree this is all just good faith? And it was so bizarre. I mean, I think. I mean, I. I don't think I would have done this, actually. But there's a part of me that said, really good faith. Do you know how many constitutional and statutory violations have been found by repeated judges and justices? Good faith. You just voted 9, 0 that there was a due process violation. The next day. This. We were talking about what happened on Thursday. There was a Supreme Court decision on Friday. The idea that he was trying to normalize this and trying to get people to agree this was just good faith. Also, how the hell does he know whether this is good faith? I mean, you have Stephen Miller saying that due process doesn't apply to these people. When a Supreme Court case that he voted on said the opposite, I just was struck by this normalizing that can't we all just get along kind of talk coming from a Justice where there's so much data that is contrary to that, and I don't know that he has a lot of data to support his view.
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Chloe Meloss
Yes, well, I'm not gonna comment on motives of either Justice Alito or Justice Kavanaugh, particularly given that I'm one of the parties in front of the court. You know, I think giving him a little bit of the benefit of the doubt, which you may disagree with, that I should do. I think he was trying to pull this out of a political sphere and say, sort of objectively, let's all just think about. Each administration has things it wants to accomplish. And the question is, how can we get on issues, frankly, where we know eventually this court's gonna have to decide it? How do we get to that point? But I take everything. You said the other thing right before we break, and then when we come back, we can really connect this up to what happened the next day, as you just alluded to, is one of the other remarkable exchanges I thought, with the Solicitor General came from when Justice Kagan was asking whether the government would commit that it would not apply its executive order within any circuit if the circuit were to roll against it. Because, remember, I said, right now there are nationwide injunctions. He wants to restrict those to just the plaintiffs and just the places where these cases are. So suppose then one of these cases gets ruled on in one of the circuits, you know, that will be handling the appeals on the merits or even take it out of this birthright case into any other case. Right. If the government doesn't want to apply an injunction broadly, will it, at least when a circuit rules would at least agree that the government would follow that circuit's ruling throughout that circuit? And she said, does the government commit to not applying its EO in the entire. And she gave the example of the Second Circuit, or does it say, no, we can continue to apply the rule? As to everybody else in the 2nd Circuit, General Sauer said, I can't say as to this individual case. Generally, our practice is to respect circuit precedent within the circuit, but there are exceptions to that. Justice Kagan said, yes, that is generally your practice to laughter and other justices came into this, including Justice Barrett, really pushing him. Wait a minute. Are you saying. Yes, it is generally. Generally the practice of the Department of Justice to obey circuit precedent, but not like. Absolutely the practice.
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Andrew Weissman
Well, we generally follow the law.
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Chloe Meloss
Follow the law. Right.
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Andrew Weissman
Except when we don't.
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Chloe Meloss
When we disagree with it. Right.
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Andrew Weissman
Yeah. And that's when we leave people to rot in El Salvador.
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Chloe Meloss
Yeah, that's right. But when pressed further about whether the government would abide by precedent of the US Supreme Court, he did say that would be a nationwide precedent that the government would respect.
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Andrew Weissman
Mary, you know what kind of hell we're in when what's news is the Solicitor General of the United States agrees that they would follow Supreme Court law.
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Chloe Meloss
Right. And we're feeling like, great. Yeah, exactly.
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Andrew Weissman
That's great. I'm just. That's just wonderful. Okay, well, with that, we actually are going to take a break and turn to something that is good news, and that is the decision on Friday. But let's take a break and we'll come back and parse that out.
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Andrea Canning
MSNBC's Jen Psaki, host of the Briefing.
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Chloe Meloss
We've never experienced a moment like this in our country, and it leaves us all with a choice. Are we gonna speak out or are we gonna be pressured into silence? I've worked for presidents. I've faced the tough questions from the press and even threats from the Kremlin. And if there's one thing I've learned, it's that you can't cower to bullies. You don't need to be hopeless. We have our voices, and I will continue using mine.
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Andrea Canning
The Briefing with Jen Psaki, Tuesday through Friday at 9:00pm Eastern on MSNBC.
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Andrew Weissman
Welcome back. So we're going to talk about the Supreme Court decision the next day. That is Friday, although it feels like about four weeks ago. But it is the day after the oral argument in the birthright citizenship case, and the court is issued a decision in connection with a case that we have talked about. So just to remind people briefly, there was an appeal from the Judge Boasberg case, people will remember, that went up to the Supreme Court. And that's the case where when Mary and I talked about it, we kept on emphasizing there was a nine to zero decision with respect to the fact that people are entitled to due process before there's a deprivation, meaning before they get on a plane and they're taken to El Salvador, they're entitled to a hearing to address legal issues, to address factual issues. And the court issued a general sort of tro, a temporary stay. They did say, people remember that this has to be done by way of habeas. So we saw a lot of these cases being brought around the country. This is one of those cases. So one of the cases that is in Texas, had the issue arose again where the government appeared to be taking people and removing them to El Salvador without attempting to. Attempting to. Yes, attempting to move them out to El Salvador without a due process hearing. There was evidence that the government had given some sort of notice. Come back to that, because that I think is probably the most important part of this case. But the real issue is like, was there going to be something stopping these people from being removed? And people remember the supreme court at about 12:50 in the morning issued this temporary stay after a whole back and forth in contretemps, some information they had from Texas, information they had from the Judge Boasberg case about the government potentially removing these people. And so there was this stay put in place. Well, the court has now issued its ruling as opposed to a 12:50am Very quick decision. They now have a ruling on this. It is seven to two. And so there are a number of things that are really interesting about this case. One has to do with due process and one, Mary, I definitely want to hear your take on. It has to do with class certification. So with respect to due process, I thought one of the most interesting things, big picture on this was that the court said, look what exactly the hearing needs to be and exactly how much notice. That is all something that we may hear later. And it's something that we're going to have the lower courts decide. But here's the bottom line up front, although at this point it's probably not up front anymore, which is a simple piece of paper that just says essentially you're being removed or we're trying to remove you is insufficient, that it needs to tell you that you actually have a right here that you could challenge it. It's not enough to give the impression that and there was evidence in the record that the president has decided you're being removed and thus you might as well consent because you're being removed anyway. That was some of the allegations by the plaintiffs here. And so the court's saying whatever it is that due process requires, the details of it, we'll get into that. But this is not it. And that I thought was the sort of big picture is that you have to give a notice that gives the person some sense that they can go to court. They also.
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Chloe Meloss
Andrew, can I interrupt just to read? Cause I actually think this is one of the. This was a pretty stinging opinion.
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Andrew Weissman
Don't I get a lot of credit for. I'm trying to stay restraining yourself.
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Chloe Meloss
Yes, yes.
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Andrew Weissman
This was, I think what people call a bench slap.
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Chloe Meloss
Yes.
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Andrew Weissman
Because it was very critical of the district court judge and of the court.
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Chloe Meloss
Of appeals and the fifth Circuit.
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Andrew Weissman
Yeah.
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Chloe Meloss
Yeah. And just also for people who are like, wait a minute, which case is this? And I know you said it up well, but people might remember this is the one where the allegations are that buses of people were on the way to the airport and that's why the Supreme Court took it literally in the middle of the night. So here's what the seven who wrote per curium. So we don't know which justice wrote it. They said the detainees interests at stake are particularly weighty under these circumstances. Notice roughly 24 hours before removal, devoid of information about how to exercise due process rights to contest that removal surely does not pass muster. So they're sending it back to the 5th Circuit in the first instance, which with pretty specific instructions to the fifth Circuit about what they need to consider as they think through what would be enough process. Right.
- [30:24]
Andrew Weissman
Yeah. And absolutely. This is also one where if the government hadn't been playing games and if they didn't take the position which the court notes in Abrego Garcia, which is, once you removed, we're washing our hands of you.
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Chloe Meloss
Yeah. They repeat that, right?
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Andrew Weissman
Yes. They basically understand that the process that's due beforehand needs to be that much greater because it's irrevocable according to the government.
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Chloe Meloss
That's right.
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Andrew Weissman
We'll see how much that holds. But, I mean, this is somewhat remarkable. And I think probably a lot of people are saying, well, why are we so excited by this? It's that sometimes notice is just notice of a thing. And the court doesn't say to the government, you have to educate the person with respect to exactly what they can do or what their recourse is. But here, I think, because of the reasons we articulated, the court did say you have to do more. I think there was a really solid part of the decision merit. Let's talk about the class action part, which I thought, you know, what had happened below is that the district judge had said no class action.
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Chloe Meloss
Right. So we were just talking in the first segment about the birthright citizenship argument and how one of the things that the justices were asking about is, would a class action be sufficient as opposed to universal? And there's a lot of reasons why they're not. But one of the questions that kept coming up was, what about emergency relief on the behalf of a putative class? So what that means is when you file a class action, as I talked about in the first segment, you have to actually meet these various criteria and actually get a class certified by the district court judge. But when it is an emergency, even though the rules don't actually explicitly provide for this, when it is emergency, a plaintiff can come in and file a complaint and seek a tro, an emergency ruling, temporary restraining order, on behalf of a putative class, meaning the class we are alleging that we will later be asking the court, the court will later have time to decide to certify that class or not. But based on our alleging of who the class is, we need emergency relief. So that's called a putative or provisional class. Right. Because a judge hasn't certified it yet, but they need emergency relief. And there was question during the birthright citizenship argument about is that something that's even permitted by the rules? And one of the positions taken is, well, certainly I think we argued, and the government did not necessarily disagree, that those are things that have been recognized by lower courts in the past, and that in fact, the court's equitable authority, its authority to just give what equity requires, which is the basis for a universal injunction. It's that same equitable authority that allows for putative class actions. Yet nevertheless, and for all the reasons discussed in the first segment, that's not necessarily a good substitute for universal injunctions, because it would not always work. Not every case is going to involve a class. But still, the question of putative classes is one that the Supreme Court had never ruled on until now. Because what the court said, the seven that agreed said, finally, this court may properly issue temporary injunctive relief to a putative class in order to preserve our jurisdiction pending appeal. The named applicants, and those were AARP and wmm, using their initials, assert that they are at imminent risk of being classified as alien enemies and removed from the United States. But the record does not indicate that they have received any formal notice of removal under the Alien Enemies Act. The named plaintiffs, along with putative class members, are entitled to constitutionally adequate notice prior to any removal in order to pursue appellate relief. And the court then drops a footnote saying, we know that the lower court here had just recently denied class certification. Our acceptance of cert in this case vacates that ruling, and so go back and do it again. And at any rate, the court there seemed to be denying cert on a different question, as opposed to the question about how much notice and opportunity to bring a habeas case is required. So that's a big deal thing from the court to actually say putative class reliefs in an emergency is something that we believe courts have authority to provide. That is one of the things that Justice Alito and Justice Thomas, who joined him, dispute. They think that not so much about whether a punitive class is okay, but they think that class actions in habeas are not permissible. But we're not going to get into all that right now. The other remarkable thing to me about this opinion, although it's not really remarkable if you study Justice Kavanaugh's opinions, is he filed a concurring opinion agreeing with the per curiam opinion we were just discussing, but says at the end in the last paragraph something that I think is very also telling about the birthright citizenship argument, Even though these cases are completely Unrelated, he says the circumstances here, and he's talking about the Alien Enemies act, attempted deportations. The circumstances call for a prompt and final resolution, which likely can be provided only by this court. At this juncture. I would prefer not to remand to the lower courts and further put off this court's final resolution of the critical legal issues. Rather consistent with the executive branch's request for expedition. And as the detainees themselves urge, I would grant certiorari order, prompt briefing, hold oral arguments soon thereafter, and then resolve the legal issues. So he's saying, even before we let a lower court decide this, let's take it up, because the amount of notice required whether Alien Enemies act can be used here, this is all going to come to us eventually. Let's just get on with it. And that is exactly what I think some of the justices were thinking during the birthright citizenship case. Why are we here having argument just on the scope of nationwide injunctions? Everybody knows the question about the Constitution of President Trump's birthright citizenship order is going to get to this court. Let's just get on with it.
- [36:24]
Andrew Weissman
Yeah, exactly. His position in the presidential immunity case a year ago.
- [36:28]
Chloe Meloss
That's right.
- [36:28]
Andrew Weissman
Not. I mean, it's just, it's.
- [36:31]
Chloe Meloss
He has in other cases, though, suggested he'd rather get to the merits earlier.
- [36:36]
Andrew Weissman
No. Yes, but not in that one. I mean, that's my point. Okay, Mary, should we start talking about the variety of things that we're seeing across the board in immigration cases? Because there are a lot of things we sort of quickly want to flag for people, and it's like a potpourri of injustice.
- [36:54]
Chloe Meloss
And they're all related to this, right?
- [36:57]
Andrew Weissman
Yes, absolutely. So here's one that goes to the idea that why you might want a hearing, why you might want to have due process. We talked a couple episodes ago about a case where there finally was a determination at a hearing about a husband and wife, where the court has asked, actually given evidence, and the court says, this isn't evidence. This is like nebulous hearsay and rules against the government. Meaning, just like Abrego Garcia, there's a reason for a hearing. I mean, sometimes a hearing's right in and of itself, but you can flesh out mistakes or areas where the government really doesn't have the proof. So here's an example in a case called dvd. Yep. Like DVD that we used to use.
- [37:43]
Chloe Meloss
We have AARP dvd. We have all kinds of.
- [37:47]
Andrew Weissman
Exactly. And these are all. All to sort of protect the identities of the plaintiffs. This is in the District of Massachusetts DVD against the Department of Homeland Security. And this is one where the government, through, I'm happy to say, a senior litigation counsel at the Department of Justice's Civil Division Office of Immigration Litigation. It'll be interesting to see whether she still has that position. She files something saying, oh, hey, we need to correct the record because we need to advise you of something. And I'm going to read the key part, because the government had previously said that one of the reasons that the court can go forward and there's nothing to worry about here, is because this plaintiff who is being seized and removed, ocg, another acronym, again, ocg, was asked verbally if he was afraid of being returned to Mexico and was alleged to have said, according to the government, to an ICE agent, that he was not afraid of returning to Mexico. That, by the way, is one of the critical issues in immigration cases, whether you have, like, a fear of persecution in a place to which you're being sent. And so here there was a declaration of Brian Ortega saying this. And the correction reads as follows. Defendants have relied on this declaration, the one that we filed, to make corresponding statements to the court. In other words, we filed this thing and then we made arguments to the court based on this quote. Upon further investigation, defendants cannot identify any officer who asked OCG whether he had a fear of return to Mexico. Nor can defendants identify the officer who OCG states, quote, told him that he was being deported to Mexico, unquote. Pretty remarkable. Mary, what do you got? Yes.
- [39:51]
Chloe Meloss
Yeah. Let me just say this is a case where the challenge was about when ICE is going to deport people to third countries, not the country that they are from. And the notice and the opportunity to object to that. And that notice of errata was filed the night before a deposition was supposed to take place of the person who was alleged to have asked this man did he have any credible fear of returning to Mexico. And I guess when no such person appeared, they had to, at the last minute, say, we got nobody, we got nothing. And by the way, this deportation occurred. This removal extraction, this extraction occurred. So this is not in a pre extraction situation. This is a person who is now, according to the plaintiffs, hiding out to avoid detection in a foreign country.
- [40:39]
Andrew Weissman
And you could just imagine behind the scenes, a career DOJ person preparing somebody for a deposition going, how could I say it politely? What on God's green earth? Like, I just filed something in court where you said the following, and I'm preparing you for a deposition, and now you're telling me that's not true anymore. I mean, you could just imagine the. Again, I've used this phrase before. The shit show that was going on in order for this and the lawyer correctly saying, my credibility's on the line. I told the court something that's wrong. Okay, here's another example, Mary in Houston. So now we're going to a different area in the country in the Southern district of Texas, Houston division, in a case which involves. And I'm going to screw up the name, and I apologize in advance, Agelviz Sanguino, A G, E L V I Z, last name Sanguino, against Kristi Noem, Department of Homeland Security. Here the plaintiff's lawyer cannot find this person, does not know where he is, has been unable to talk to his client. In order to vindicate the due process rights that we just talked about, this is what the court has to order. A federal judge orders that defendants the US government within 24 hours of this order will file a declaration with the court confirming the current location and health status of the plaintiff, as well as the legal basis for his continued detention. I mean, this is like, for this continued sort of his extraction and his. It's like his kidnapping and his being held, his seizure. And it's like, where is he? How is he and what is basis? I mean, this is unbelievable. The government lawyer said that he does not know where this person is. And finally, the court says if you government say that you are unable to do this or the person's not within your control because they're in El Salvador, I need to know, and this is my term, chapter and verse, exactly what's going on. And I need to know, for instance, all of your communications with El Salvador facilities. I need to know the contracts you have. I need to know sort of what the hell is going on. You can see the judge has just lost it going, this doesn't happen in this country. But I mean, apparently it does. But, I mean, this is just a remarkable, remarkable order in the face of what I used to think only went on in other countries. I mean, this is as close to a disappearance of a human being by our government as you can imagine. And guess what the United States government is doing with respect to this order. Appealing it.
- [43:24]
Chloe Meloss
Well, that is of a piece. I'm going to give one more example before the break. And this is also a case that we have talked about. There's so much conversation about Abrego Garcia and the judge in Maryland ordering him and the Supreme Court affirming and ordering the government to facilitate his release from an El Salvadoran prison and his return to the United States. There was another case involving someone who goes by the pseudonym Christian, which we talked about several weeks ago, who had come here as an accompanying minor based on a settlement with the government a few years ago, he had an order saying that he could not be removed until after his asylum petition was fully heard and a decision was made on it. He was nevertheless removed the day after March 15, the day after the Alien Enemies act proclamation. So probably the same time as Abrego Garcia, a court hearing. His case also ruled consistent with Abrego Garcia and with what the Supreme Court said in Abrego Garcia ordered the government to facilitate Christian's return to the United States. And made clear facilitate it means at a minimum, you have to ask them to send him back. The government, rather than doing that, sought a stay while it appealed and then went to the 4th Circuit. When the district court denied that stay and asked the 4th Circuit to stay that, and the 4th Circuit just ruled 2 to 1, no, they're not going to stay it. And they explained that. Here's what the government is now arguing about, why they should stay this and actually vacate. The lower court's order is they say now that we have issued an indicative asylum decision, a decision that says essentially he would not get asylum anyway because he's a member. Again, alleged here, he hasn't had a chance to contest this of trend. And so he is not qualified to obtain asylum and we would use our discretion to deny it anyway based on his membership in a gang and some drug charge that he had at some point. Now, remind you, he's never had a hearing to contest these things. But even more, I think outrageous to the Fourth Circuit was the fact that. So March 14, there's the president's Alien Enemies act order. March 15, Christian gets deported, Case gets brought or extracted. I should say case gets brought. In late April, the district court judge orders that his return be facilitated five days later. That's when the government issues this indicative asylum decision created five days after the district court's facilitation order was issued. The 4th Circuit says, or one of the judges who concurs in the 4th Circuit decision says was not an authentic change in factual circumstances. This judge says the district court judge did not abuse its discretion in denying the request to get rid of this case because of this indicative asylum order, because there's no regulation or policy that provides for indicative asylum decisions. Christiane's attorneys have said there is 271 page procedural manual. That practice is nowhere in that manual. And Christian's lawyer argues that this is a litigation driven document, a contrivance created just for this case. The government says the Judge in the 4th Circuit has no response to this charge. A deafening silence. So this is what we have happening now. No due process, but we're going to issue a ruling anyway indicating we would deny asylum. So why are we emphasizing these three things? I mean, this is what our government is doing right now to avoid accountability, avoid actually complying with judges orders. So we have a couple of more things to say about this and a couple of new orders to talk about when we come back after the break.
- [47:11]
Andrew Weissman
That sounds great.
- [47:21]
Andrea Canning
It's conversation, it's perspective. It's the weekend on MSNBC with three new dynamic hosts, Jonathan Capehart, Eugene Daniels and Jackie Alemani. And in the evening, it's the Weekend prime time with Eamonn Mohadin, Katherine Rampel, Elise Jordan and Antonia Hilton. Join them as they offer analysis on the week's most important events and set the agenda for the week ahead. The weekend at 7am eastern and the weekend primetime at 6pm eastern Saturdays and Sundays on MSNBC. MSNBC Films presents a six part documentary series, David Frost versus on the next episode, Elton John.
- [47:59]
Andrew Weissman
It's okay to ask for help. I didn't think it was because I thought it was a sign of weakness.
- [48:03]
Andrea Canning
Sunday at 9:00pm Eastern on MSNBC.
- [48:11]
Chloe Meloss
Welcome back. Okay, Andrew, before we highlight a couple of other things going on the case I was just talking about, you and I were both in government. Suppose we do learn of information where we think that maybe this person is a member of Trende Aragua and so maybe there'd be reasons not to grant asylum. What would you have done in that circumstance?
- [48:30]
Andrew Weissman
So one, I would explain why it's coming up now. I'd explain why it's new and why it hadn't been previously presented. Because you've taken the time of the court and you haven't misled the plaintiff, but you're presenting something new. You need to explain where you were, why is this coming up. And you need for the credibility of the information, you need to be able to do that. That's number one and that's maybe the least of it. But you need to explain why it's new and not and because then you have the court here saying it looks made up. Second, you need to this is due process requires that you understand that you will present evidence and it can be challenged. And so that's the way you say judge, here's the evidence. This is what we have, this is the information. This is what we have turned over to the plaintiff. So they're aware of it prior to the hearing. But we understand that it's late. But this is a matter of importance and urgency. We shouldn't be precluded. And you give it to them and then you say we're, of course we'll have a hearing. Now, the hearing can take different forms and I won't get into some hearsay rules and non hearsay rules. But you understand that there's an ability for the other side to address it. And that, by the way, is something I just want to make sure everyone understands. This is not a partisan issue. This is something that would happen in any normal administration that you and I have both been in serving under Republicans and Democrats. It's just not a partisan issue. It is just the way you behave when you're in the government.
- [50:11]
Chloe Meloss
Yeah. And here, of course, this man has already been extracted and so is not in a position himself to be able to weigh in and present any, you know, at least from his first person account, any contrary evidence.
- [50:24]
Andrew Weissman
That's actually a really good point. Which is the other thing that you would do is you would make sure and facilitate his being able to consult with his counsel so that there's a meaningful opportunity to contest it and it can be done remotely and there are all sorts of ways to do that. But you can't just be like we're washing our hands of it. And we will certainly talk about the state secrets issue on future episodes because that is a way in which the government is essentially continuing to the trend that we just talked about is continuing to sort of stonewall the plaintiffs and the courts. But we'll get into that in another episode.
- [51:05]
Chloe Meloss
That's right. And just before we move on from that, that is what's currently happening in both the Abrego Garcia existing pending case and the jgg, the Judge Boasberg case. Now, that case is now sort of morphed into a class action on behalf of those who were already extracted on March 15, who were already flown to El Salvador and are detained there. And he's trying to get to the bottom of, can I have a class action of those people? Can you show plaintiffs that they are in the constructive custody of the US Government? Let's do some discovery about that. Because if they are, then that makes a class or that could make a class. And the government is saying state secrets. We can't talk about our arrangements with the El Salvadoran government or what contracts we might have. And meanwhile in the Abrego Garcia case, the government is saying state secrets. We can't tell you about what we've done to facilitate Mr. Abrego Garcia's return because this would damage our foreign relations. This would damage our ability for other countries, not just El Salvador, to trust us if we respond to this. That's what Andrew, I know you're referring to and say we'll dig deeper in that when those courts both actually rule on the government's assertion of the state secrets privilege. I will say for those who listened in or saw transcripts of the hearings or just reporting by the press about the hearings before the judges in those cases, particularly Friday's hearing in the Abrego Garcia case, the judge was very frustrated. Last thing I think that is worth us talking about, although we don't have time to get in great detail about it, is the Supreme Court issued yesterday, on Monday, an order granting the government's motion to stay a lower court injunction. And this was in the Venezuelan TPS case. Tps, of course, is temporary protected status. It's a status that is created by Congress. There's a whole set of statutes that govern this process by which the secretary of Homeland Security can provide a temporary protected status for people from certain countries to be in this country and give them work authorization when there is civil unrest, for example, in their home countries, when there has been a natural disaster that has devastated their home countries, there's various reasons like this. And Venezuela was so designated a few years ago, right before transition between Biden and President Trump. We had the Secretary of dhs, Secretary Mayorkas, extend the TPS status for Venezuelans. He was extending it earlier than the statute requires it to be extended. The statute requires a determination to be made at least 60 days before the end of any TPS period of time so that the people who have TPS have time to get their affairs in order and know if they're going to potentially, potentially have to leave the country. It's all about notice and making sure these people can take care of themselves. If we do determine that temporary protective status is no longer necessary, I say we, if the secretary of the Department of Homeland Security determines that. So Secretary Mayorkas had extended that even earlier than the 60 days Secretary Noem came in right after, immediately after transition and after she was appointed and said, we are now vacating the extensions that Secretary Mayorkas gave and we are terminating as of the original dates, which would be April 7, which today is May 20. So April 7 already came and went for one big group of Venezuelans. And September, a date in September for another big group of Venezuelans that was litigated. The lower court said, you can't terminate like this. Even made some preliminary determinations about likelihood of success on the merits of a racial animus claim in addition to Administrative Procedure act claims. And that is what the Supreme Court has now agreed to stay that decision, which means that there are potentially hundreds of thousands of Venezuelan TPS holders who now have lost their status.
- [55:23]
Andrew Weissman
Yeah, so this is actually a huge decision. And there's a related case that we'll also be covering on a similar type of issue. We'll see if the same thing happens. By the way, this decision appears to be 8 to 1 because Justice Jackson noted that she would not have stayed the injunction. So again, this is like a stay of a stay, but essentially you have the lower court issuing an injunction and the Supreme Court says, no, we're sort of vacating that. Essentially, we're staying that. So it takes it away. What it does mean, though, is that while there's no sort of TPS for all of these people, they do still have due process rights in terms of being removed, being able to say they have an individualized fear of persecution if they were to be removed. So it becomes a lot of what we've been talking about are these procedural issues that affect so much substantive rights because now instead of having sort of a class wide determination that was being made, these individuals are going to need to be able to make claims. But that's a lot of people and they need a lot of legal help. So there's going to be a lot for us to talk about. Mary. But that was sort of a remarkable decision from the Supreme Court because it's sort of Thursday, Friday, Monday, and tells you just how much is going on in this sort of immigration context and in terms of this country being a pluralist country and a nation of immigrants, but for Native Americans, indigenous people, this really is very much a sort of war on those people that we're seeing in all of these different contexts.
- [57:07]
Chloe Meloss
So we will have much more to come on this. Sorry that we could not dive deeper into each of these cases. And all of the legal arguments, the TPS cases are very interesting. It's really sort of one of DHS Secretary Noem's terminations that she's been issuing just for Afghanistan last week. That's something being litigated. In fact, icap, that's another ICAP case where we're litigating about the purported termination of TPS status for Afghans and also for Cameroonians, so much more to come.
- [57:36]
Andrew Weissman
And I have a tip for you, Mary, because it is from the headlines today, which is that Secretary Noem was asked when she was at a hearing before Congress by a senator what habeas corpus means. And you can Google this and see her answer, which is that she says habeas corpus is the power of the president to remove people from this country.
- [58:04]
Chloe Meloss
No.
- [58:06]
Andrew Weissman
Yes, Mary, I kid you not.
- [58:09]
Chloe Meloss
Oh, my goodness. Okay.
- [58:11]
Andrew Weissman
So I guess she took the corpus.
- [58:14]
Chloe Meloss
Part of that and just changed the habeas part of that. Okay.
- [58:17]
Andrew Weissman
Okay. Well, I wanted to say to our listeners, thank you very much for listening. I know this is a lot of it's a lot of law, it's a lot of details. I know it's a lot of initials because there are a lot of initials that we've gone over. And it can be very hard to keep the details straight. And that's great if you do. But I do want to make sure that we're trying to give you a flavor of what is going on and the arguments that are being made. As you see can it can go as deep as you want. And it's so great that you're staying engaged because I think that is the only salvation for this country. So big thank you for listening. Remember that you can 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 Final Trumpland with Alex Wagner Gardner. Her episode is with Chris Hayes.
- [59:12]
Chloe Meloss
Yes. And to send us a question. And I know people are thinking you haven't done questions in a long time, but we actually do answer a lot of questions while we go along. We just don't always read them because we run out of time every single week. To send us a question, you can email us at main justice questionsbcuni.com this podcast is produced by Vicki Bergolina with production support from Max Jacobs. Our audio engineers are Mark Yoshizumi and Katie Lau. Our head of audio production is Bryson Barnes. And Aisha Turner is the executive producer for MSNBC Audio.
- [59:48]
Andrew Weissman
Search for Main justice wherever you get your podcasts and follow the series.
- [60:07]
Andrea Canning
Dateline True Crime Weekly Andrea Canning and the Dateline team cover breaking crime news around the country. And now a special series with daily updates from the trial of Sean Combs.
- [60:18]
Chloe Meloss
I'll be talking to NBC News correspondent Chloe Meloss every day after court about what she's seeing inside the witnesses, the evidence and what it all means.
- [60:28]
Andrea Canning
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