Supreme Showdown-Can One Court Stop a President?

Summary

The 47 Morning Update with Ben Ferguson Episode: Supreme Showdown—Can One Court Stop a President? Release Date: May 16, 2025

In this compelling special edition of The 47 Morning Update, host Ben Ferguson delves into a critical Supreme Court case that challenges the balance of power between the judiciary and the executive branch. Live from the Supreme Court, Ferguson engages in a deep discussion with J.B. McCuskey, the Attorney General from West Virginia and Ferguson’s former roommate, to unpack the implications of the court's deliberations on presidential authority and judicial overreach.

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Overview of the Supreme Court Hearing

The episode kicks off with Ferguson highlighting the significance of the Supreme Court's recent oral arguments. The central issue revolves around the authority of district judges to issue nationwide injunctions, a practice often termed "lawfare." This tactic involves using legal proceedings to undermine presidential policies, raising concerns about judicial independence and the separation of powers.

Ben Ferguson [03:44]:
"It's what many have referred to as lawfare, where a district judge tries to take away all the power of the president through issuing a nationwide injunction."

Chief Justice John Roberts notably interjected during the hearing, admonishing Justice Sotomayor for her persistent interruptions, emphasizing the contentious nature of the proceedings.

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Insights from J.B. McCuskey on the Case

J.B. McCuskey provides an in-depth analysis of the legal and procedural missteps leading to the current crisis. He explains how bipartisan efforts over the past three decades have inadvertently empowered district judges to overextend their reach by issuing nationwide injunctions without proper jurisdiction.

J.B. McCuskey [03:44]:
"District court judges are enjoining presidential decrees. Right. And saying what the president has done is not just illegal in my courtroom, but it's illegal in the entire country."

McCuskey underscores the constitutional limitations outlined in Article III, asserting that district courts lack the authority to make decisions that affect the entire nation. He advocates for stricter adherence to procedural norms, such as utilizing Rule 23 to establish class actions, ensuring that nationwide implications are appropriately managed through the judicial system.

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The Role of Amicus Briefs

Ferguson and McCuskey delve into the strategic use of amicus briefs in influencing Supreme Court decisions. The amicus brief filed by West Virginia, in collaboration with the American Center for Law and Justice (ACLJ), aims to demonstrate the unconstitutionality and impracticality of nationwide injunctions.

J.B. McCuskey [07:36]:
"An amicus brief is in layman's terms, it's called a friend of the court brief. And so what, what its purpose is, is to help the justices as they're making their decision with parties who have an interest in the outcome."

The brief argues that the misuse of nationwide injunctions undermines public confidence in the judiciary and disrupts the intended balance of power among federal courts.

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The Debate Over Lawfare

The conversation shifts to the concept of lawfare, questioning whether the left's strategy to find sympathetic judges to block presidential orders constitutes an abuse of the legal system.

Ben Ferguson [09:43]:
"Is this a version of lawfare where you say we don't respect the people, we don't respect their vote, we don't respect who they chose as their leader... and so therefore, we are going to use lawfare to stop the will of the people?"

McCuskey responds by highlighting that both major political parties engage in similar tactics, emphasizing that the issue lies not with taking legal action per se, but with the manner in which judicial processes are being exploited.

J.B. McCuskey [10:16]:
"We as Republicans are constantly finding ways that the federal government is overstepping its bounds and we use the courts in order to rein them in... It is this novel concept that you use a single friendly district court to do what is supposed to be the job of the entire judiciary."

He stresses the importance of maintaining constitutional integrity within the judicial system to prevent partisan manipulation.

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Judges’ Demeanor and Possible Outcomes

McCuskey describes the atmosphere in the courtroom, noting the judges' seriousness and the profound implications of their deliberations.

J.B. McCuskey [12:07]:
"The judges were very serious because this is an issue that affects not just the issue that was in front of them, but as you heard, it has great historical significance and enormous future looking significance as well."

He outlines potential outcomes:

• Victory: The Supreme Court rules that district courts cannot issue nationwide injunctions, reinforcing constitutional boundaries.

• Half Victory: The Court discourages but does not entirely prohibit nationwide injunctions, introducing stringent criteria for their issuance.

• Loss: Nationwide injunctions are deemed appropriate, potentially leading to judicial chaos as inconsistent rulings proliferate.

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Timing and Next Steps

Ferguson queries McCuskey about the expected timeline for the Court's decision and its implications.

J.B. McCuskey [16:18]:
"I would think that a couple of weeks would be a very reasonable amount of time for them to decide this because there is a very significant interest of time here, and the court understands that."

McCuskey anticipates a swift ruling due to the high stakes involved, suggesting that a prompt decision would likely reflect well on their legal strategy and preserve judicial order.

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Conclusion

Ben Ferguson wraps up the episode by expressing gratitude to McCuskey for his insightful contributions and reaffirming the significance of the case at hand. Listeners are assured of ongoing coverage and updates once the Supreme Court releases its ruling.

Ben Ferguson [17:06]:
"We're going to keep covering it. We'll let you know when this ruling comes down. Always a pleasure, my friend. Good to chat with you."

The episode underscores the delicate interplay between different branches of government and the judiciary's role in upholding constitutional principles amidst political challenges.

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Notable Quotes:

• Ben Ferguson [10:16]:
  "It is the kind of lawfare. It is this, this, this novel concept that you use a single friendly district court to do what is supposed to be the job of the entire judiciary."

• J.B. McCuskey [07:36]:
  "If you are looking to have a district court make a decision for a large number of people, you have to go through what's called a Rule 23 and create a class action."

• Ben Ferguson [12:07]:
  "Is it an unfair result to use the process as it was delineated in the Constitution?"

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This episode of The 47 Morning Update provides listeners with a thorough examination of a pivotal judicial challenge facing the Trump administration, offering expert analysis and highlighting the broader implications for American governance and judicial integrity.

Transcript

[Podcast Host]

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[Political Commentator]

They said, sir, would you like to rest? He said, what do you mean, rest? I've been resting on the plane. I don't want to rest. I have to rest for. He was thinking about Biden to come. Okay, Biden. Biden would have rested the entire trip. He wouldn't, first of all, he wouldn't have made the trip, but if he landed, he would have been rested for about five days before he had the first meeting. I said, no, let's go have the meeting because I want to find out what's going on.

[Ben Ferguson]

Over.

[Podcast Announcer]

You're listening to the 47 Morning Update with Ben Ferguson.

[Ben Ferguson]

Good Friday morning. Welcome to a special edition of the 47 Morning Update, where we are live at the Supreme Court. As the Supreme Court listened to oral arguments on Thursday about the power of district judges to issue nationwide injunctions. It's what many have referred to as lawfare, where a district judge tries to take away all the power of the president through issuing a nationwide injunction. During the hearing, Chief Justice John Roberts admonished Justice Sotomayor for continuing to interrupt the US Solicitor General and to say it was heated for Supreme Court standards would be an understatement. But the big question now is this, what is going to happen? And will the Supreme Court defend President Trump's executive order power, or will they allow the judges to go rogue and to stop his agenda? Joining me to talk about this is a dear friend of mine, the attorney general from West Virginia, who's actually my former roommate. He was in the court as they filed an amicus brief on behalf of the people of West Virginia. And I want you to hear what he said about the entire day at the Supreme Court that can affect everyone in this country. It's the 47 Morning Update, and it starts right now.

[Podcast Announcer]

First up, story number one, the Supreme.

[Ben Ferguson]

Court had a very busy day on Thursday, and one of the most consequential cases involving the Trump administration, it was heard in front of the Supreme Court. Now, my former roommate, you don't get to say this every day, is also the attorney general from West Virginia. We were together actually on Capitol Hill. I'm staring at the Supreme Court right now. And he was in the Supreme Court today for this important, this major case on judges power. And I want to go to you, JB on this so that you can explain how all this started. In essence, you had judges that were making decisions that were covering the entire country. And the argument is maybe that's not how it's supposed to be on these local levels or these, these smaller court battles. And this is what this is all about.

[J.B. McCuskey]

Yeah, I think you, what you just said there makes a lot of sense. This is a national issue that was dissolved, that was decided or attempted to be decided by a district court judge. And so what happens, and this has been happening a lot, especially very recently within the last 30 years, and it's a bipartisan problem, Ben, is that district court judges are enjoining presidential decrees. Right. And saying what the president has done is not just illegal in my courtroom, but it's illegal in the entire country. And our process is set up differently than that. Our district court judges are supposed to hear cases that are in front of them and make decisions for the plaintiffs that are in front of them here. Several interest groups in several states sued in a, I'm going to just say a friendly jurisdiction, which is how this works, is you find a judge that is ideologically aligned with you and you get them to enjoin an entire action that happened in this case in New Jersey. And so a New Jersey judge then decided for all other of the 600 district court judges and all of the circuit judges, and ostensibly for the Supreme Court, whether or not a presidential order was constitutional. While we did not get into the underlying facts of this case today, Ben, what the Supreme Court was hearing and what our brief described was the reasons why this is both unconstitutional and a bad idea. So for One, both the history of our courts, as you look back into the Courts of Chancery in England, as Well as Article 3, which was written to delineate the powers of our courts, indicate that circuit judges do not have the authority to issue nationwide injunctions. Further, our brief gets into the idea that there is a remedy here. And the remedy is that if you are looking to have a district court make a decision for a large number of people, you have to go through what's called a Rule 23 and create a class action so then the court knows who the plaintiffs are that they're trying to address a problem for. And fourth, and maybe most importantly is that district courts and our federal court systems, they are life tenured for a reason, and that is to eliminate the stench of politics from the, from the benches around the country. And when you do forum shopping and you start to use these universal injunctions in these sort of weaponized ways, what you then will find, I believe, and our brief delineates that the confidence that the public has in the independence of our judiciary will go down very quickly. And that is the single most important branch for the public to have confidence in, because it is their orders and, and it is their writings that tell every American how the Constitution is being interpreted as it relates to the laws that apply to them. So this is a really big case. We feel really, really good about our briefing. The people of West Virginia joined with a group called the American center for Law and justice in this briefing, and we're very hopeful that the court will use our amicus to guide them into what I believe is a proper decision. And that is the district courts lack the ability to adjoin the entire country as it relates to presidential executive orders.

[Ben Ferguson]

So let's talk about the amicus brief and break that down. The goal of an amicus brief and people that are listening. My guest with me is the Attorney General from West Virginia, J.B. mcCuskey. One, a dear friend of mine, former roommate, and we are, as I stare literally at the Supreme Court right now. You just left the Supreme Court where you guys filed this amicus brief with the aclj. What, what is the goal of an amicus brief for people that maybe don't understand that terminology, maybe they've never heard it before. And specifically, what did you guys put in that amicus brief that you're hoping that the justices will get from it and read from it on this case?

[J.B. McCuskey]

Yes. So an amicus brief is in layman's term, it's called a friend of the court brief. And so what, what its purpose is, is to help the justices as they're making their decision with parties who have an interest in the outcome. And in West Virginia, the interest in this outcome comes from this widespread, weaponized use of nationwide injunctions. We just saw within the last week, a nationwide injunction out of the state of Washington that will stop President Trump's executive orders on the use of coal and lowering electricity rates for Americans and putting West Virginia coal miners back to work today in order to meet our nation's energy needs. And so for us, these nationwide injunctions, when you're a small rural state, you're never going to be the forum that gets shopped into, right? They're never going to ask real patriotic Americans like they are in West Virginia to answer these questions. They're going to go to places where it's a little different. And so we have a huge interest in ensuring that the process plays out in nationwide injunctions to make sure that these, the president's executive orders, as they relate to the economy and the people of West Virginia are upheld, and if they are found to be unconstitutional, that they go through the proper channels. And that is what our brief says. Our brief says that it isn't that the plaintiffs don't have any options. Our brief says the options that they chose are not available to the court that made them. So they needed to have gone through what's called a Rule 23, as I just said, and explained to the court why they have a class of plaintiffs that have a similar need for this same kind of relief. And then the court can order that those people get that relief. And then if another district court or another circuit court comes to a contrary conclusion, then the Supreme Court can use. The Supreme Court's power generally comes from when they are. They are deciding between circuits that have a different interpretation of the law. And in this instance, they circumvented that entire process by getting one single district court judge to speak for the entire country. And that is not allowed under Article 3. And it's a really bad idea in terms of public confidence and the independence of our judicial branch.

[Ben Ferguson]

Is it fair to say that the, the mechanism that's being used by the left to go and find these friendly judges and friendly courts to do this. Is this a version of lawfare where you say we don't respect the people, we don't respect their vote, we don't respect who they chose as their leader, which this time happens to be President Donald J. Trump, and so therefore, we are going to use lawfare to stop the will of the people and what they voted for and what their leaders that they voted for, who wanted a free and fair election are trying to do.

[J.B. McCuskey]

Well, I hesitate to use the word lawfare here, Ben, because we do the same thing occasionally when there's Democrats in the White House. And it's not that we have a problem with challenging federal government edicts. Right. We as Republicans are constantly finding ways that the federal government is overstepping its bounds and we use the courts in order to rein them in, like in West Virginia versus epa. Right. So it isn't that. This is, it isn't lawfare as you describe it, because we need the option to be able to do this too. It is the kind of lawfare. Right? It is, it is this, this, this novel concept that you use a single friendly district court to do what is supposed to be the job of the entire judiciary. Right. There's a reason why our system is set up the way that it is. And I personally believe as an originalist, that the factual scenarios surrounding the reason why somebody's asking for something shouldn't change the fundamental role and the rules that surround our court. And that was really, in essence, the main part of this argument is should we break the rules? Because this is important. And my personal opinion is that is not true. We should maintain the constitutionally granted powers that exist in our district courts and allow the system as it was created by our founders to work, because it does.

[Ben Ferguson]

What was the demeanor of the judges and what were the main things they were honing in on? As you were in there listening to this, you were there for about four hours waiting, and part of that's waiting time for, but, but what were their big questioning and could you read into what you think the possible outcome could be here and what is best case scenario? What is 50, 50 for, for, for, you know, conservatives on this one? What is, what is success draw or lose look like?

[J.B. McCuskey]

Yeah. So the judges, this was a very long argument. And for your listeners out there, if you ever want to go to the Supreme Court, the seats are not very comfortable. And so, you know, by the end of it, your dogs were barking pretty well. But the judges were very serious because this is an issue that affects not just the issue that was in front of them, but as you heard, it has great historical significance and enormous future looking significance as well. They understand that the answer to this question and the ruling in this case will likely have an enormous effect on how the judiciary operates going forward for a very, very long time. And so they were asking a lot of Questions, and I don't know how frequently this happens, but about the historical beginnings of Article 3, you know, what were the British courts that we were modeling our courts after? What were they doing? You know? And so we could sort of get a look into the mind of the framers and the founders as they were designing our courts. They were obviously looking to their former homeland to get an archetype, and so they were looking a lot at that. And the other questions really centered around this idea of what happens in either event. Right. So there were a lot of questions that. That were like, if I. If I agree with you, what do you think will happen? And they asked that to both sides. Right. So if we decide there are no universal injunctions government, what happens to the folks who would be affected by this executive order during the pendency of the time, where it would get fully briefed in all the circuits and all the districts, which I think matters? I think that's an incredibly important question, because the answer to that is there will be lots of other lawsuits in lots of other places, and they might win some and they might lose some. And so that's when you start to get the true confluence of what is the question that the circuit courts are answering differently, and when do we need to step in to make this decision? Because the Supreme Court creates precedent for the entire country. The other main questions I feel like were the most important were, why do you believe that a district court has the ability to enjoin an entire country? And they were obviously answered differently by the two different parties. But the court was really trying. There were a lot of very functional questions, I think, that were enabling them to get to their conclusion. Is, is it an unfair result to use the process as it was delineated in the Constitution? It's always the most fair to do something properly. And I don't think that there is an unfair result if the court says to the complaining parties that, look, you have a gripe here, but you got to do it the right way. The second part of your question, Ben, was what does victory look like? Victory is the court saying to all of the district courts that nationwide injunctions are not an appropriate thing for district courts to be doing and eliminating that function of district courts completely. We don't believe that that's constitutional. A half victory, and I hate to talk about half victories, would be a ruling that says something like, we believe that nationwide injunction should be extremely disfavored. And here is a test to determine whether or not a court can issue a nationwide injunction at the district court level, give them a roadmap for the questions they need to answer as to whether or not they can do it or not. And a loss, a full loss, is just nationwide injunctions are found to be an appropriate action to take by a district court, and we think that will result in a little bit of judicial chaos.

[Ben Ferguson]

My guest with me, the attorney general From West Virginia, J.B. mcCuskey. J.B. final question for you is timing on this. Is this one of those rulings that we could probably hear saying quickly from the Supreme Court, or could this take weeks or months? And, and can you read into how quickly they respond? And is that good or bad news? A lot more time they take. Is that better for us or the last time they take? Probably better for us. Read into that for people that don't understand exactly how the court works.

[J.B. McCuskey]

Yeah. So I would say that this will likely come out quickly, and I think the faster it comes out, the more likely it is that we have been successful.

[Ben Ferguson]

So weeks, you're thinking here?

[J.B. McCuskey]

Yeah, I would think that a couple of weeks would be a very reasonable amount of time for them to decide this because there, there is a very significant interest of time here, and the court understands that. And the fact that they heard this case on an emergency basis indicates that they're probably going to issue an opinion in the same kind of hurried stance.

[Ben Ferguson]

Yeah, it's an incredible case. I'm glad that you're in your position as the attorney General, West Virginia. I'm glad that you guys are getting to work with the American center for Law and justice on this and filing this. We're going to keep covering it. We'll let you know when this ruling comes down. Always a pleasure, my friend. Good to chat with you. Glad to have you on the show.

[J.B. McCuskey]

It was great to see you this week, too, buddy. Have a great day.

[Podcast Announcer]

Thank you for listening to the 47 Morning Update with Ben Ferguson. Please make sure you hit subscribe wherever you're listening to this podcast right now. And for more in depth news, also subscribe to the Ben Ferguson Podcast and we will see you back here tomorrow.

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This podcast is sponsored by Talkspace. May is Mental Health Awareness Month, and Talkspace, the leading virtual therapy provider, is telling everyone, let's face it in therapy, by talking or texting with a supportive licensed therapist at Talkspace, you can face whatever is holding you back, whether it's mental health symptoms, relationship drama, past trauma, bad habits, or another challenge that you need support to work through. It's easy to sign up. Just go to talkspace,.com and you'll be paired with a provider, typically within 48 hours. And because you'll meet your therapist online, you don't have to take time off work or arrange childcare. You'll meet on your schedule. Plus, Talkspace is in network with most major insurers and most insured members have a $0 copay. Make your mental health a priority and start today. If you're not covered by insurance, get $80 off your first month with Talkspace when you go to talkspace.com and enter promo code SPACE80. That's S P A C E80. To match with a licensed therapist today, go to talkspace.com and Enter promo code SPACE80.

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