Judge Blocks Trump Birthright Citizenship Order

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1:36This is Bloomberg Law with June Grosso from Bloomberg Radio. Anxious waiting for federal workers at 17 agencies now that the Supreme Court has given the green light to President Trump to move ahead with plans to dramatically reduce the size of the federal government with mass layoffs. State Department spokesperson Tammy Bruce says the department is now moving to implement the layoffs. It will happen quickly. This is not going to be an extended wait for people who are listening and watching in this building or fellow Americans at home and around the world. This will happen quickly. This also means new turmoil for lower courts and federal workers in challenges to Trump's February 11th executive order.

2:25My guest is Jonathan Adler, a professor at William & Mary Law School. Jonathan, what's your take on the Supreme Court's order on Tuesday, allowing Trump to move ahead with mass layoffs? I think the Supreme Court's decision to stay the district court's order was largely based on the fact that the court saw this as a very narrow and limited question. Basically, what was at issue was the lawfulness of an executive order, directing agencies to develop plans to reduce staffing and implement reductions in force. And as we've seen in a lot of contexts, it can be very hard to challenge a presidential executive order, and it can be particularly hard to enjoin an executive order that is largely telling other parts of the federal government what sorts of things they should be doing or what sorts of plans to make.

3:19But I think the reason eight justices thought that there was a stay justified in this case is because at heart, that was the question before them. It was whether this executive order and the accompanying memorandum to the federal bureaucracy saying develop plans for reducing force could be enjoined and didn't really implicate whether or not any specific agency's plan for reductions in force and for other changes would itself be lawful. And viewed in that narrow way, I think the question before the court struck most of the justices as fairly straightforward and relatively easy because it was just about the justiciability of challenging and enjoining the executive order at this point in time.

4:07Would these kinds of challenges to firings at an agency, would that conventionally be done agency by agency? Well, in general, I mean, there's two things here. One is that, and we've seen this with lots of executive orders over the last 20 years that direct agencies across the board to engage in some sort of behavior, which is, as an initial matter, the president is not an agency for purposes of the Administrative Procedure Act. Speaking an injunction against the president is at the very least disfavored. And so as an initial matter, the view of the Supreme Court and the view of most appellate courts has been you have to challenge an individual agency action that is following the president's direction.

4:51You don't challenge the president's direction. So just to give an example, during the Biden administration, there was an executive order directing agencies with responsibilities that relate to climate change to incorporate a particular social cost of carbon, a particular estimate of the impacts of climate change in the various decisions they make, whether that's regulations they issue or whether to issue permits for oil and gas exploration or for other things. And a bunch of folks tried to challenge that, including the state of Louisiana. And what the appellate courts ultimately concluded, I think, correctly is you can't challenge the executive order that says, insofar as is consistent with law incorporate the following cost of carbon.

5:33Rather, we need a specific agency action, so a specific rulemaking, a specific permit denial, a specific action of some sort that implements and follows that instruction to challenge. So similarly here, it may well be that the reorganization plan or the reduction in force plan of a particular agency is unlawful, But that is what will have to be challenged. And that necessarily means that litigants that are affected by specific agency reorganizations or specific layoffs in particular agencies will have to challenge those discreetly. But there's a second complication that I think the court is also cognizant of, which is generally, and I know the plaintiffs will be trying to figure out ways around this, but generally courts have been told to consider challenges to things like layoffs after the fact and through other mechanisms and not through seeking to enjoin or prevent the layoffs in the first place.

6:32That is to say, an employee who is terminated unlawfully has claims that an employee can bring for back pay and for compensation and the like. And as the D.C. Circuit had concluded in a somewhat similar case, that is generally what the relevant statute expects to happen, rather than suing ahead of time to try and either A, stop agencies across the board from doing this sort of thing, or even B, trying to stop an agency from beginning to implement the plan before it actually takes effect. In separate lawsuits, judges have blocked nearly 10 ,000 layoffs at the Department of Health and Human Services and about 1 ,300 layoffs at the Education Department.

7:18Are those proceeding the way you're supposed to proceed? Do those injunctions remain? Well, for the time being, at least those injunctions remain. One unfortunate aspect of the Supreme Court dealing with these sorts of questions through orders on the emergency docket or shadow docket or whatever we're supposed to call it these days is that the lack of an opinion giving us an explanation makes it unclear which of the various arguments the court found most persuasive or was relying upon the most. As I mentioned, the Trump administration raised both broad arguments against the justiciability of a challenge to an executive order in the abstract, as well as claims about whether or not you can challenge layoffs other than after the fact in suits for things like compensation or back pay.

8:07Because the court didn't tell us which of those or whether both of those arguments were persuasive to a majority of the justices, we don't entirely know how this applies to the other suits that are out there. But insofar as other suits are focused more summarily or specifically on what particular agencies are doing under the statutes that are applicable to those agencies, and insofar as the plaintiffs are able to identify particular layoffs that are going to be happening at a particular agency on a particular schedule where it's not speculative, but you can actually identify this is what's going to happen, and it's going to happen at a date certain or relatively soon, then those cases might be distinguishable and might be more consistent with the sorts of constraints that motivated the court to stay this particular decision.

9:01Last month, the Trump administration filed an emergency appeal of the judge's order that blocked 1 ,300 layoffs in the education department. But the Supreme Court hasn't acted on that yet. So when they act on that, will we perhaps learn more? Perhaps. I mean, I certainly hope so. I mean, on the one hand, you know, the court is dealing with lots of issues, and we know that in the term it just completed, there were multiple opinions that banned 100 pages. So it's not as if they're not doing other things, but it would be beneficial if they took at least a little bit of time to provide more explanation of their decisions.

9:39So in a case like this, we got a paragraph from Justice Sotomayor explaining why she joined the court and, you know, noting, as I said, that saying an injunction against the executive order doesn't mean that specific actions by specific agencies cannot still be challenged. She wrote that just for herself, but that at the very least means that these other cases that are focused on individual agencies and specific plans at individual agencies are likely to be evaluated separately. And the fact that the Supreme Court did not summarily act on these other applications at the same time as it did this case suggests that at least some justices recognize the difference between an order enjoining the executive order and enjoining what the executive branch does across the board with an order that enjoins what a specific agency is doing or is planning to do.

10:28And at the very least, that implicates some more specific questions and is more likely to be the sort of claim that a district court can appropriately hear. Now, with regard to another Supreme Court decision involving Trump's executive order ending birthright citizenship, where the court limited the power of judges to issue nationwide injunctions, today a federal judge in New Hampshire issued a preliminary injunction blocking Trump's executive order from taking effect anywhere in the United States and certifying a class action that includes all U.S.-born children or future children. children whose automatic citizenship could be jeopardized by that executive order.

11:13Is bringing a class action like this what the Supreme Court said to do, or at least suggested doing? Well, it's certainly something the Supreme Court acknowledged could happen. And insofar as it has nationwide effect, if the class was properly certified under the federal rules of civil procedure, then this would be in line with what a majority of the Supreme Court said should happen. I haven't had a chance to read the specifics of this judge's order, but insofar as the judge identified a particular class of similarly situated parties that are to be affected by this executive order in the same way and, you know, within the same timeframe, it is at least a more direct and legally grounded way of enjoining what the federal government has said it's going to do than the use of a so-called universal injunction, in part because by identifying and certifying a class, the court is still limiting the relief it is providing to litigants that are properly before the court.

12:16Now, I am sure the Trump administration will challenge the class certification here and claim that perhaps that the class was too broad or that there are other problems with the basis for certification. And this could well end up back at the Supreme Court. I also suspect, though, that at this point, there are likely to be five justices that are ready to proceed to the merits of this question. And I think unlike in a lot of these cases where the Trump administration has had strong procedural arguments or kind of formalistic arguments about the exercise of jurisdiction as a way of pushing back against some of these district court orders on the merits, the Trump administration's birthright citizenship executive order will be very hard to defend.

12:58There are parallel cases seeking class action status and nationwide injunctions. A judge in Maryland is weighing a similar case. Since the New Hampshire judge has certified this class, doesn't that stop another judge from certifying the same class? I'd want to look and see what the requested class is in these other cases and the extent to which there is overlap or the extent to which there are potential classes that would be in addition to what's here. Certainly, infants are a very large class of people essentially affected by the Trump administration's birthright citizenship order, but there are other groups of people that could be affected as well.

13:40Other people whose citizenship or lawful presence in the country is implicated, people whose ability to make life plans are affected by the executive order, perhaps even institutions that rely upon the ability to hire or provide benefits to non-citizens. There may be other groups that could also be affected by the executive order. And so it's quite possible you could see requests for classes that are somewhat different. But I would not be at all surprised to see efforts to perhaps consolidate some of these cases. But again, I also think now that there is a class certified, it's quite possible that the Supreme Court might be interested in finally reaching the merits of this question.

14:20And as I noted, I think while we've seen in many of these cases, the Trump administration have strong procedural or jurisdictional arguments that it could make, this is a case where on the merits, I think the Trump administration really has a bad hand to play. But why does it take the court so long to reach the merits? They had the birthright citizenship question before them and didn't decide it. I happen to be sympathetic to the argument that these jurisdictional issues matter. I think that the courts, the Supreme Court in particular, believes that these jurisdictional issues matter. In some respects, I think the attitude of several of the justices is just because the executive is reaching beyond the scope of its power, we, the courts, should not do that as well.

15:05Rather, the president's willingness to push the boundaries of executive authority should not justify the judges or justices' willingness to push the bounds of judicial authority. And I think what that has meant is that there are some justices that are very sympathetic to claims that individual district courts have gotten a bit over their skis or have been too aggressive, but also recognizing that that is wholly distinct from the underlying merits questions. And that means that the merits aren't reached as quickly, perhaps, but it does allow the court to say, look, we're playing by the rules. We are making sure that we're dotting our I's and crossing our T's on questions of jurisdiction and on questions of what issues are properly before us, properly before the courts, so that if and when the Trump administration loses on the merits, they have no one to blame but themselves in terms of making legal claims that at the end of the day, we're not meritorious.

15:55Maybe we'll see them taking the case next term. Thanks so much, Jonathan. That's Professor Jonathan Adler of William & Mary Law School. Coming up next on the Bloomberg Law Show, once again, top Justice Department officials are overruling line prosecutors, giving a deal to the former governor of Puerto Rico and a banker with ties to the Trump administration. You're listening to Bloomberg. Some people treat ChatGPT like some kind of smart search engine, and some use it to get work done. ChatGPT Work is a new way of working in ChatGPT that can take action across your apps and files, stay with a project for hours if needed, and turn a goal into finished work.

16:37It's designed to help you move from a chaotic starting point to a reviewable first version. So all the source materials, briefs, and scattered information that you have to grind through to turn into something useful can just become something useful. Put ChatGPT to work on your most ambitious ideas and projects. Get started at ChatGPT.com by selecting Work Mode, available on Plus and Pro plans. Early morning on a Manhattan sidewalk, a shooting caught on surveillance video. It was an assassination-style killing, and everybody saw it. Now, as Luigi Mangione prepares to stand trial for the murder of UnitedHealthcare CEO Brian Thompson, which he denies, a new podcast series from ABC Audio and 2020 goes inside this captivating case.

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17:38A federal judge was troubled by the Justice Department's about-face giving leniency to Puerto Rico's former governor and a billionaire banker shortly before a bribery trial was scheduled to begin. Former Governor Wanda Vasquez and bank owner Julio Herrera Velatini both have connections to the Trump administration, each faced up to 20 years in prison if convicted of felony bribery and wire fraud. But they can now avoid any prison time after a directive from Justice Department leadership allowed them each to plead to a single misdemeanor charge. That's according to Bloomberg sources, as reported in an exclusive story by Ben Penn, senior Justice Department reporter at Bloomberg Law.

18:26He joins me now. Ben, tell us about the bribery case against Vasquez and Velatini. So in August of 2022, former Governor Wanda Vasquez and the banker you referenced, Julio Herrera-Bellotini, along with a former FBI agent who was serving as an alleged intermediary between the two, They were all charged with seven felony counts, including honest services fraud, bribery, wire fraud, related to a conspiracy that they allegedly reached this deal in which the governor would terminate Puerto Rico's financial regulator in exchange for receiving about$300 ,000 in campaign contributions. And this regulator was in the midst of scrutinizing about$10 billion in transactions for Herrera's bank, Bank Credito, which is an international bank that had operations in Puerto Rico.

19:25So as part of the deal, as originally alleged, not only would they fire the regulator in the midst of this investigation, but Herrera, the bank owner, would then have the ability to replace him with his hand-picked successor. And that is what went down. Of course, those allegations have been denied from the get-go, and we've had three years of pretty intensive litigation, and the parties were all gearing up for trial later this August. Just say$300 ,000, and we'll put that in there. Sure. Tell us about the connections to Trump. So the connections come in two forms. First, you have Vasquez had endorsed Trump in 2020 when he was running for re-election.

20:07She was the governor at that time, and her endorsement was seen as helpful for Trump's ability to court Latino voters heading up to November. And then the other connection is Fellicini has hired, as part of a powerhouse legal defense team, Christopher Kies. And Kies was Trump's personal attorney during both the Mar-a-Lago classified documents indictment brought by special counsel Jack Smith and the New York civil fraud litigation. So Kies is somebody who now remains a defense attorney and is seen as having, from my reporting, still has quite a bit of connections in the White House. Well, his former co-counsel in the Trump classified documents case, Todd Blanche, is now the deputy attorney general.

20:55And your sources told you that Kies took the case up the chain to the deputy attorney general? Kies was part of a team of lawyers who began arguing early in this administration when Trump came back to the White House and that this investigation was a case of weaponized government from the left. And that's an argument that, at a minimum, we can say gained a receptive audience at the upper echelons of the Justice Department. They didn't necessarily endorse that this was an example of weaponization, but somebody from the Deputy Attorney General's office at a meeting that was held at DOJ headquarters in Washington, that was attended by the U.S.

21:36Attorney in Puerto Rico and a prosecutor based in Washington, And there was an order, basically, after both sides had a chance to make their case, the deputy attorney general's office demanded that they reach a deal, that this case doesn't go to trial. And as a result, that really gave the defense counsels an upper hand and led to a misdemeanor plea deal in which now the defendants are really facing a strong likelihood of no prison time, whereas before they were facing felonies that could have given them a maximum of 20 years in prison each. So did Todd Blanche overrule line prosecutors who had pursued the felony bribery and wire fraud charges?

22:21Was it basically a directive? I don't have reporting to prove what Blanche's direct involvement was. What I can say for my reporting is that my sources have told me that it was a representative for Blanche, an associate deputy attorney general, who convened the meeting, and that was the individual who ordered parties to come to terms on a much more lenient settlement. The federal judge in the case was obviously dismayed by the government's decision to shift gears, as she put it, at the 11th hour. And she wrote that the case was zealously prosecuted and the defendants will strikingly face a mere slap on the wrist with a misdemeanor plea, despite the government previously seeking harsher punishment.

23:07But she said there was nothing she could do about it. That's right. She said she wasn't willing to violate the Constitution and separation of powers by getting in the government's way. And she was left with no choice but to respect the government's decision that this plea deal is appropriate. She did also point out that the order for the plea deal, she said, presumably came on an order from Maine Justice, which in my view implies that whether or not she read my reporting, she feels very strongly that there's no way that after years of zealous advocacy for felony convictions that the government wouldn't have changed course at the last minute had it not been for intervention from the top of DOJ.

23:48She did play one card that she had. The defendants had asked to have their arraignment and plea hearings be held by video teleconference. And she wrote, while the defendants are now charged with a misdemeanor offense, it's still an offense that lacerates the integrity of our Democratic electoral process. Therefore, she said she was denying their request and ordered them to appear before her in person. Yeah, she's playing the hand that she has, so that appears to be the bit of leverage that she feels she can exert right now. But there's no reason to think that this plea agreement won't be fully resolved before her in the coming weeks or months.

24:30This is reminiscent of the case against New York City Mayor Eric Adams, where the political appointees at DOJ ordered the interim U.S. attorney for the Southern District of New York to drop the case. And she resigned in protest with a slew of other prosecutors. And here the line prosecutor, the assistant U.S. attorney, withdrew from the case and left the Justice Department. So are there some troubling similarities? I would say yes and no at the same time. And yes, in the sense that you do have an example of somebody who is relying on intervention from the very top of the Justice Department to go against the wishes of prosecutors.

25:12But, you know, I talk to people who used to be public corruption prosecutors. In their minds, this Puerto Rico case doesn't come close to the same level of alarm they felt in response to the Eric Adams situation in which you had multiple prosecutors resigning in protest rather than assign their name to any dismissal. In this case, it wasn't just an outright dismissal. There at least is some accountability for the defendants, albeit not nearly as much as what prosecutors, mind you, a U.S. attorney in Puerto Rico who was appointed by Trump in Trump's first term, had been arguing for years was merited.

25:46You know, I talked to some people who felt that, you know, perhaps in normal times, as they put it, that this outcome that is facing Herrera and Vasquez would be more upsetting and considered more outrageous. but now they felt like it's impossible to view it on its own and not relative to other developments in this administration, including not just Adams, but other cases in which people with connections to Trump personally or others in his orbit have been able to get significant relief pardons or dismissals against the wishes of the federal prosecutors who would try them. What is left of the public corruption team?

26:24Right now, they are down to a skeleton crew. They're in the process of being reassigned to other offices, or many of them have already left on their own. One of the handful of remaining attorneys in that public integrity section happened to be the line attorney prosecuting Vasquez and Herrera. And so it was interesting to me that, according to my reporting, that prosecutor was left on his own, along with the U.S. Attorney in Puerto Rico, but without the backing of any of his direct bosses to argue before the Deputy Attorney General's office why this case should proceed and did have merit. I think, you know, perhaps if there had been a stronger public integrity section, you know, that that wouldn't have happened and a line attorney wouldn't have been left to stand on his own.

27:13You wrote that a few days before the plea agreement, the head of the department's criminal division in a speech about overseas bribery enforcement warned white-collar lawyers that mischaracterizing prosecutorial conduct would be counterproductive to your appeals. I thought it was important to place this level of outreach to superiors above the line prosecutors to get relief for a client in the broader context of what we've seen happening in this administration where you've seen ever since Pam Bondi, when she was sworn in as attorney general and put out a series of memos that narrowly curtailed the vigor of white-collar enforcement, you've seen defense attorneys trying to take advantage of that and bring up cases to senior officials at the Justice Department and argue that this case no longer meets her priorities or that, you know, also in alignment with another one of Bondi's memos seeking to root out weaponization inside the Justice Department parroting Trump's frequent talking point, defense attorneys trying to make the point that these were weaponized prosecutors in this case wouldn't have been brought had they not had partisan motivation.

28:22Now, what we saw in this conference that I was referencing to in the article, Matt Gagliotti, who is the acting head of the criminal division at DOJ, was essentially telling white-collar defense attorneys, hey, there are people out here who may not be arguing in good faith about why their clients deserve relief. And we're not going to just rubber stamp your appeals to us. You need to come to us with facts and evidence as to why your case should no longer be prosecuted. You know, looking at that in the context of what happened with Vasquez and Velatini, now that was an example where you had somebody who had direct ties to the Deputy Attorney General's office, which is higher up in national and some DOJ, higher up than the criminal divisions.

29:04It'll be interesting to see going forward, which types of cases are attorneys trying to make their appeals to in criminal division versus the deputy attorney general's office. If you go to the DAG's office, will they shoot down and say, no, you need to talk to the criminal division first? You know, these are dynamics that are still in the early months of playing out and think will be perhaps dealt with on a case by case basis. Well, so much for public corruption cases. Thanks so much, Ben. That's Ben Penn, Senior Justice Department reporter at Bloomberg Law. Coming up next on the Bloomberg Law Show, the Labor Department's quiet regulation rollback done without a press conference or fanfare.