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Main Justice
Humpty Dumpty
00:58:06
Can you suspend habeas? SCOTUS says no. Plus: a TRO on firing federal workers and national injunctions have their day in court.
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- [00:01]
Kelly Ripa
Hey there everyone in podcast land. I just wanted to thank you all for listening and telling your friends about our little podcast. Let's talk off camera with me, Kelly Ripa. I know there are millions of podcasts out there, so I really appreciate you giving us a listen. There are so many gems from season one from Matthew McConaughey disclosing that he and Woody Harrelson might be brothers. To Salma Hayek telling us about the argument that started her friendship with Prince. Hope you enjoy season one and stay tuned for a bigger and better season two.
- [00:36]
Andrew Weissman
Listen as Silenia tells us why she chose to vaccinate her daughter.
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Mary McCord
I definitely felt like the pros far outweighed the cons. The diseases that I am protecting my child against, they're still here. And at the end of the day.
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Andrew Weissman
It'S my job as a mother to keep my child safe. Talk to your child's doctor and learn more at yvaccines.com brought to you by Merck hello and welcome back to Main Justice. It is Monday afternoon, May 12th. I'm Andrew Weissman and I'm here with my co host, Mary McCord. Hi, Mary.
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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.
- [01:39]
Andrew Weissman
That's the way I feel. If you could just change that to how you feel since January 20th.
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Mary McCord
Yes, yes, that's true.
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Andrew Weissman
Because as we've talked about, the sort of intentional blitzkrieg 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, that's for sure.
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Mary McCord
I'm sure you're quite sick of me by now.
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Andrew Weissman
Oh, yeah. It's like no. Two years in running. Still wanted to get as much as I can.
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Mary McCord
It's all good stuff.
- [02:14]
Andrew Weissman
This is one where it's like no anecdotes, no chit chat, because we need to get to this because it's just, there's just too much to cover. Too much. Which is maybe my segue to Mary, what is on our dance card.
- [02:28]
Mary McCord
Right. Well, we're gonna 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 Rameyza Ozturk, the Turkish graduate student at Tufts who was able to successfully obtain review under a petition for habeas corpus and has now been released from detention where she was being held after.
- [03:19]
Andrew Weissman
It's a bit of good news. I mean, it's so hard to view this as good news because its outrageous conduct by the government. But the courts really stood up here.
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Mary McCord
Yep. 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 that have. Huge, huge case.
- [03:57]
Andrew Weissman
Huge case. Yeah.
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Mary McCord
And then we will finally look forward. Thursday is a big day here at the Supreme Court.
- [04:04]
Andrew Weissman
And for you, yes, for, for my.
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Mary McCord
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.
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Andrew Weissman
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.
- [05:20]
Mary McCord
Right.
- [05:20]
Andrew Weissman
What is it?
- [05:21]
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 that the 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, you know, 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.
- [06:57]
Andrew Weissman
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 20th, 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 C, E, G. Why Stephen Miller is floating this idea of we may want to get rid of it because courts, it is thwarting their plans. 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 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. 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 I would 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. 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.
- [08:45]
Mary McCord
Right.
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Andrew Weissman
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, oh, you know what, we're just going to get rid of the writ of habeas corpus and suspend it under the Constitution?
- [09:06]
Mary McCord
Well, I think one thing I'd say is the Constitution is clear that the power to suspend it lies with Congress.
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Andrew Weissman
And not the president, hence Article one, not Article two.
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Mary McCord
That's exactly right.
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Andrew Weissman
And just to repeat, as you noted, just Article one is congressional limits. Article two is executive, and it's placed in Article one because it's completely understood that to suspend it there needs to be a congressional finding, not an executive finding.
- [09:35]
Mary McCord
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, you know, 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 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. 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?
- [11:12]
Andrew Weissman
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.
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Mary McCord
We talked about it, I think, last week. Right.
- [11:33]
Andrew Weissman
Yeah, we, at this point, it feels like this is like, you know, our class, our main justice class, people are. Should be up to speed on that. Is that going to be on the exam? At the end of the exam?
- [11:43]
Mary McCord
For sure, yes.
- [11:44]
Andrew Weissman
So there's obviously the issue of the sort of lack of a rebellion or invasion. I think if you asked 100 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. Yes.
- [12:08]
Mary McCord
That the public safety requires.
- [12:11]
Andrew Weissman
It 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, 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. I'd hate to see something happen.
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Mary McCord
Wouldn't it be too bad?
- [12:46]
Andrew Weissman
And so we're going to be thinking about doing this and have it the 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 brushback 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 was 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 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 ostrich case and the Judge Ilston 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.
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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 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 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 an illegal 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 before. Before. 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 Mary.
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Andrew Weissman
And that case was a 19th century Civil War case. Is that where you're quoting from?
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Mary McCord
Well, that.
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Andrew Weissman
Or is that a little bit earlier.
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Mary McCord
That particular one was. Was not the 19th century one. But, yes, this goes back and back and back.
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Andrew Weissman
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.
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Mary McCord
Yes.
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Andrew Weissman
That is a recent Supreme Court loss that the administration had 9 to 0 on the issue of due process. And so the. 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. 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, oh, if you're a criminal defendant but not a citizen, you can have conviction first in trial later.
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Mary McCord
Not the way it works.
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Andrew Weissman
But, yes, I do think that in many ways this was a little bit of a. Not only a threat, but as 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. 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, shall we talk about osterk? Because that's an habeas case. And as you said, this is a graduate student at Tufts. She is currently free. Out on bail.
- [17:38]
Mary McCord
She's free.
- [17:39]
Andrew Weissman
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 orders.
- [17:59]
Mary McCord
Not on criminal charges. 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, wouldn't. 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 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 gotta file in Louisiana.
- [19:20]
Andrew Weissman
It's a shell game. It's a human being.
- [19:23]
Mary McCord
Yes.
- [19:24]
Andrew Weissman
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 at 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, 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. Let's just get to the merits of this, which is really, 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.
- [20:29]
Mary McCord
Co. Authored.
- [20:30]
Andrew Weissman
Right. An opinion piece. So that's a First Amendment activity. 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.
- [20:49]
Mary McCord
Yeah. 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 him, her as part of retaliation for her exercise of her First Amendment rights.
- [21:42]
Andrew Weissman
So, Mary, one heartbreaking thing before we take a break. I was listening to Ms. Oskjerk at her press conference where, you know, she's released and she's there with her lawyers and, you know, she's talking briefly and thanking her university and her lawyers and the supporters who, who helped her. Let's listen to her statement.
- [22:07]
Mary McCord
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.
- [22:31]
Andrew Weissman
This is somebody who is needlessly detained for six weeks, 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 stuck talking about the American system of justice and still believing in it when she was such a victim of it. It was really heartbreaking in terms of our country.
- [23:08]
Mary McCord
Clearly, you know, for her, that means the courts and the lawyers who stood up for her.
- [23:12]
Andrew Weissman
Yeah.
- [23:13]
Mary McCord
Bittersweet.
- [23:14]
Andrew Weissman
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 and come back and then talk about the Judge Elston case and what's going on there.
- [23:27]
Mary McCord
That sounds good.
- [23:37]
Kelly Ripa
Hey there, everyone in Podcast land. I just wanted to thank you all for listening and telling your friends about our little podcast. Let's talk off camera with me, Kelly Ripa. I know there are millions of podcasts out there, so I I really appreciate you giving us a listen. There are so many gems from season one from Matthew McConaughey disclosing that he and Woody Harrelson might be brothers to Salma Hayek telling us about the argument that started her friendship with Prince. Hope you enjoy season one and stay tuned for a bigger and better season two.
- [24:12]
Jeanine Pirro
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- [24:43]
Mary McCord
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- [25:18]
Andrew Weissman
Welcome back. So Mary, Judge Ilston, 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, 21, I think. Yeah. So many different employment actions. And there is 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.
- [26:09]
Mary McCord
Go temporary restraining order. Everybody knows in our class of main justice, they know what temporary restraining order is.
- [26:15]
Andrew Weissman
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 this is affecting. We're not talking about tens or hundreds, but really tens of 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. Like a duck on a June bug.
- [27:03]
Mary McCord
Oh, I love that. That's a new one. Okay. Usually it's dog with the bone or something. I like duck on a Jim Bucket. So yeah. 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 RIFs. 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 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 declaration sworn statements about what was happening to illustrate what is at stake in this lawsuit and some of the ways 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 of 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. One person.
- [28:17]
Andrew Weissman
One.
- [28:18]
Mary McCord
I'm a lawyer, 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? Gotten so reduced in force they can't get any aid. One farmer tried to get some help. No one's answering the phone, right? No one's 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 requests. 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.
- [29:49]
Andrew Weissman
And I thought what was great is it helps counter the narrative of, oh, these are just bureaucrats who are sort of sitting around 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. Not a good time to be taking people away from the FAA when you know what I like? I like to have airports with radar and communication systems. Call me craz.
- [30:30]
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? Oh, no, we don't need that kind of thing anymore. The VA talking about cutting 83,000 positions. Yes, you heard that right, 83,000.
- [30:50]
Andrew Weissman
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. 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 hue and 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. Osterk, 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? Right, 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, right? I wanted to.
- [31:52]
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? I mean, you did say some things maybe could be done legitimately, but these things weren't.
- [32:02]
Andrew Weissman
Yeah. 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 Ilston 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.
- [32:55]
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 no. Nope, we're not doing that. But this just bypassed all of that. Just said, we're doing it through executive order.
- [33:18]
Andrew Weissman
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's 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, oh, no, no, no, even if you have a legitimate claim, it has to be brought sort of 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 hear 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 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 9th Circuit and then likely to the Supreme Court. So she's definitely thinking about her future.
- [35:34]
Mary McCord
Audience 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 Ridda Mandamus and a stay have now been filed in the Ninth Circuit. So the Ridda 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 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 a protective order 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.
- [37:12]
Andrew Weissman
Yeah. And at that point, it really is too late. It's too late. 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.
- [37:45]
Mary McCord
Hard to fix.
- [37:46]
Andrew Weissman
And you know that I think in some ways is sort of a metaphor for the entire four years because I don't know how this gets put back together.
- [37:57]
Mary McCord
Yeah. 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 Korean War. Yes, right, 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.
- [38:42]
Andrew Weissman
Exactly. Although she cites it, Mary, correctly.
- [38:46]
Mary McCord
Yes, that's right. Not in part.
- [38:48]
Andrew Weissman
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, this is like my favorite concurring opinion ever. As you know, I. I read it every single year. I read big piece pieces. If there's anything to premium episodes, I read a pretty extensive part of that. Yeah, yeah.
- [39:15]
Mary McCord
But she's put it here. 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.
- [40:10]
Andrew Weissman
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.
- [40:32]
Mary McCord
That's right.
- [40:33]
Andrew Weissman
It's like, make me stop. Right. 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 Ilston's 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. Yep.
- [41:09]
Mary McCord
Yeah, 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.
- [41:48]
Andrew Weissman
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 Supreme. An upcoming Supreme. Supreme Court argument. So let's take a break and come right back.
- [42:25]
Mary McCord
Sounds good.
- [42:37]
Kelly Ripa
Hey there, everyone in podcast land. I just wanted to thank you all for listening and telling your friends about our little podcast. Let's talk off camera with me, Kelly Rent. I know there are millions of podcasts out there, so I really appreciate you giving us a listen. There are so many gems from season one from Matthew McConaughey disclosing that he and Woody Harrelson might be brothers to Salma Hayek, telling us about the argument that started her friendship with Prince. Hope you enjoy season one and stay tuned for a bigger and better season two.
- [43:11]
Jeanine Pirro
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- [44:18]
Andrew Weissman
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 the and 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.
- [44:48]
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.
- [45:43]
Andrew Weissman
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.
- [45:57]
Mary McCord
That's right.
- [45:58]
Andrew Weissman
And the government's saying that person is not entitled to citizenship.
- [46:02]
Mary McCord
Citizenship.
- [46:03]
Andrew Weissman
Yep. Okay. That's one category. What, what's the other category?
- [46:07]
Mary McCord
Well, it's also people who are here not lawfully. Right. 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 14th Amendment, which, remember, we fought a civil war and the 14th 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.
- [47:01]
Andrew Weissman
And the child, of course the child is here lawfully. I mean, their child's born here. They're not unlawful. I mean, the parent might be, but the child isn't. And that's what we're talking about is the, the citizenship of the child of.
- [47:14]
Mary McCord
The person born here. That's right.
- [47:15]
Andrew Weissman
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. But as you said, that's not what's before the Supreme Court. So what on God's green earth is the Supreme Court can be deciding?
- [47:28]
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.
- [47:45]
Andrew Weissman
Mazel tov. Yes, as we say.
- [47:48]
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.
- [48:56]
Andrew Weissman
These are separate cases that were brought. And then they're sort of now being heard together at once, which makes sense in front of the Supreme Court.
- [49:05]
Mary McCord
And so the issue is each court to rule on this, said this violates the plain text of the 14th Amendment. It violates Supreme Court precedent. The decision 127 years ago by the Supreme Court in a case called Wong Kim, Arkansas, 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 statute in the 1940s that has the same language as the 14th Amendment. And they made clear that this was supposed to apply to everyone born here except diplomats.
- [49:39]
Andrew Weissman
So you all got nationwide injunctions, and.
- [49:42]
Mary McCord
That'S the issue in the Supreme Court.
- [49:44]
Andrew Weissman
What's the problem and what's the problem there? What are the sort of two sides of that debate?
- [49:48]
Mary McCord
The government immediately said, look, we're appealing the decision about the 14th Amendment, but right now we want to stay the injunction insofar 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.
- [50:23]
Andrew Weissman
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 that 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 if they.
- [50:50]
Mary McCord
Were to rule for the government uniformity.
- [50:51]
Andrew Weissman
It's like saying, oh no, let's hear them seriatum and have lots of different decisions, thousands of cases, right?
- [50:59]
Mary McCord
That's right, yeah. So and it's interesting because the government briefs, this is 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.
- [51:16]
Andrew Weissman
But they like that. I thought they liked that when they were suing the Biden administration and they got nationwide.
- [51:22]
Mary McCord
Some people did like that. Yeah.
- [51:23]
Andrew Weissman
So now just to be clear, this idea of nationwide injunctions is one that when whoever is sitting, nobody likes when.
- [51:30]
Mary McCord
They'Re in government, nobody likes.
- [51:31]
Andrew Weissman
Exactly. So it is something that people generally take on. It is a little rich that this group could suddenly be like, oh my God, I can't believe that their nationwide injunctions when like a New York minute ago they were doing this when it was President Biden in the office. 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 like whatever you might think about some cases involving nationwide injunctions and whether there should be limits on it, it this is not a good case for that argument that this makes no sense. This is why nationwide injunctions make sense. I mean.
- [52:15]
Mary McCord
That's right.
- [52:15]
Andrew Weissman
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?
- [52:21]
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 US 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's 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 are 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, etc. Is like, I don't know what this card is. So chaotic.
- [53:11]
Andrew Weissman
Chaotic and chaotic with an element of cruelty. I mean, this again goes back to the usturk 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.
- [53:31]
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 14th amendment. Right. So when we talk about preserving the status quo, we're talking about preserving what has been in place ever since the 14th 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 14th Amendment. That has been the state of affairs for a very long time. So we will see.
- [54:10]
Andrew Weissman
Well, Mary, break a leg.
- [54:12]
Mary McCord
Yeah, 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, Kelsey Brown Corcoran, Supreme Court advocate, our Supreme Court director here at ICAP will be arguing in, will be all listening on Tenter Cooks and we'll talk much more about it then.
- [54:28]
Andrew Weissman
Okay. And so, Mary, again, local news. Yeah. Talked about 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.
- [54:56]
Mary McCord
That's right.
- [54:57]
Andrew Weissman
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 would snock it again, 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?
- [55:35]
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 as a Republican from North Carolina was his position, frankly, on January 6th. He was not only a proponent of the false claims about a stolen election, but he had actually defended some of the January 6th 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 6th 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.
- [56:18]
Andrew Weissman
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 6th, that's great and fine. That is like, just so everyone understands.
- [56:32]
Mary McCord
That's right. It's not the fact that he defended people. Yes, that's right.
- [56:35]
Andrew Weissman
Exactly. Everyone is entitled to defense. And frankly, even the people who sort of sometimes most need it are people who are sort of held up to vilification. And that's true of the people who attacked the Capitol on January 6th. I mean, obviously, everyone has very strong views of that in terms of being horrendous. That's not the issue. Right, right.
- [56:55]
Mary McCord
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 all of his. 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.
- [57:41]
Andrew Weissman
Yeah, wait for it, the pardon attorney. So he's the poobah. He's the pooh bah of the Department of Justice, because it's like, oh, he has many, many different hats. Many times I have to say, the Weaponization Committee is like straight out of George Orwell 1984, which is War is peace. And it's just amazing.
- [58:02]
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 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.
- [58:39]
Andrew Weissman
Well, obviously that that's where if you're looking for people with, you know, the right experience, look to Fox News. Where better to look.
- [58:47]
Mary McCord
Pete Hedza.
- [58:48]
Andrew Weissman
Right, exactly.
- [58:49]
Mary McCord
Our attorney general still is regularly on, I think many nights a week.
- [58:53]
Andrew Weissman
So we'll come back and talk more about Jeanine Pirro because I think there'll be a lot of scrutiny to her background and her qualifications as well as there's a technical issue about the appointment that we'll come back and talk about. So that's sort of a little bit of a flag for things to keep an eye out for.
- [59:13]
Mary McCord
Teaser.
- [59:13]
Andrew Weissman
So, Mary, I think we have to wrap because I know that you have been doing a lot of moots. You know, these Supreme Court arguments don't just happen. There's lots of, you know, so called murder boards where you sort of practice the questions that justices may ask in preparing such. So you are doing God's work. There's another one tomorrow, 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.
- [59:45]
Mary McCord
That's right.
- [59:46]
Andrew Weissman
And so you can go to the Supreme Court of the United states website and supremecourt.gov. exactly. And that is still running and operative. 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, one will.
- [60:12]
Mary McCord
Be from the state of New Jersey. And then one will be the Solicitor General of the United States, John.
- [60:17]
Andrew Weissman
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, that the pure legal discussion of the nationwide injunctions. But for those people who are, it's like a, it's an assignment.
- [60:34]
Mary McCord
Yeah. 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 gotta kind of be prepared to camp out.
- [60:44]
Andrew Weissman
It's like a rock concert.
- [60:45]
Mary McCord
That's right.
- [60:46]
Andrew Weissman
And this is one where it's definitely to be continued because we'll have 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 the 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 lot live audience in Washington D.C. where we talked about Youngstown. How's that for a teaser?
- [61:27]
Mary McCord
Mary 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 Virgolina with production support from Max Jacobs. Our audience Audio engineer is Katie Lau, our Head of Audio Production is Bryson Barnes, and Aisha Turner is the Executive Producer for MSNBC Audio.
- [61:55]
Andrew Weissman
To send us questions, you can email us at Main justice questions. That's one word. Main justice questions b cuni.com and search for Main justice wherever you get your podcasts and follow the series. Hey everybody, Conan o' Brien here with an ad about my podcast. Conan o' Brien needs a friend. I've had so many fantastic conversations with people I truly admire people like Michelle Obama, Bruce Springsteen, Maya Rudolph, Tom Hanks. New episodes are out every Monday and we have a really good time, so subscribe and listen wherever you get your podcasts.