Judges Block Trump Agenda Despite SCOTUS Ruling

0:00Some 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. It'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.

0:42Healthcare doesn't always work great. If you've ever waited on a refill or couldn't schedule an appointment, you get it. That's the kind of stuff Optum is changing. They're using data and technology to integrate patient care, pharmacy, and everything else. So healthcare is connected, not complicated. What's that look like? Cheaper prescriptions that are easier to get and care that looks at the whole person. How you need it. Optum is helping make healthcare work as one for everyone. Learn more at business.optum.com. Never bet against American grit or American energy. Through innovation, Venture Global is not only building some of the largest energy facilities in the world right here in the United States, but delivering American energy at a fraction of the cost and a fraction of the time.

1:30So while others are busy talking, we're busy building. That's Venture Global. That's unstoppable energy.

1:44This is Bloomberg Law with June Grosso from Bloomberg Radio. At the end of June, President Trump celebrated the Supreme Court's decision limiting the ability of federal judges to issue nationwide injunctions. Thanks to this decision, we can now promptly file to proceed with numerous policies that have been wrongly enjoined on a nationwide basis. And some of the cases we're talking about would be ending birthright citizenship, which now comes to the fore. But a federal judge stopped that from happening. And though it's clear the decision was a win for the Trump administration, how big a win has yet to be determined.

2:27In the last few weeks, federal judges have been using the alternative options offered by the justices to block the Trump agenda nationwide. For example, judges have blocked the enforcement of Trump's birthright citizenship order, restored public health data to government websites, and struck down Trump's ban on asylum claims. Joining me to discuss just how much that Supreme Court decision will benefit the Trump administration is Carrie Colonese, a professor at the University of Pennsylvania at Cary Law School and director of the Penn Program on regulation. Cary, what did the majority suggest in the CASA decision as alternative paths to getting nationwide injunctions?

3:13Well, first of all, you still can get nationwide or universal injunctions. I mean, people use different language, but basically the same thing. And you still, under CASA, can't get it when just an injunction confined to the parties would not provide the parties with complete relief. So we might see, and in fact, the court suggests even that the states that were challenging the birthright citizenship order could well have a basis for getting a nationwide injunction because they need it for complete relief. People move from one part of the country to the other, from one state to the other states.

3:59And without some national uniformity in this litigation, states will not know whether they should be giving certain people federally funded benefits that apply only for citizens, for example. They'll need to probably redo a lot of their administrative paperwork or hire more workers to handle applications. It'd be a quagmire for a lot of states. So first of all, that's one key thing is that Trump v. Casas doesn't say like absolutely never a nationwide injunction, but probably in most cases that won't be possible. But in this case, with birthright citizenship and the states that are suing, it might be obtainable because anything short of that would not give the litigants complete relief.

4:51So that's one thing to know. But But then the court, as you suggest, also says, gee, there can be other ways of getting what is essentially nationwide injunctive relief. We wouldn't call it a nationwide injunction, but it's essentially going to be the same thing. And that would be through certifying a class action. So litigants come forward all the time. We have class actions all the time where the court is making a decision that applies to anybody within a certified class nationwide. And in this birthright citizenship context that would seem also to easily apply, there are some standards for what it takes to qualify for a class.

5:34But once that's met, then you could get nationwide relief. And a third option here is something under the Administrative Procedure Act, which is a statute that applies to any federal government agency's actions. And there's a provision in the APA, as it's known, that allows courts to set aside unlawful actions. It's not just even allows it, but it says the court shall set aside unlawful actions. And that's a possibility. The court in the Cossett case doesn't say much about the set-aside option under the Administrative Procedure Act, but it does acknowledge in a footnote that it's not saying that it can't apply.

6:18And in fact, in various other contexts, the Supreme Court oral arguments and the like, for example, and actually a longstanding tradition since at least the 1960s, the federal courts have used this set-aside language to hold unlawful government policy regulation guidance that applies nationwide. If it's not lawful, it's hard to say how a government policy could still apply to folks who just don't happen to have the ability to go into court to challenge it. If it's unlawful, it's unlawful. And so anyway, there's a real possibility that both in the birthright citizenship case and in a lot of other cases, litigants are going to be able to still get what is essentially nationwide relief, shutting down unlawful policies or at least potentially unlawful policies on a preliminary basis on a national level.

7:16The New Hampshire judge in the birthright citizenship case certified a class action lawsuit on behalf of U.S.-born children or future children whose automatic citizenship could be jeopardized by President Trump's executive order. So wherever those children may be across the country. So in effect, it's a nationwide injunction. Was he working within the confines of the Supreme Court's decision or was this sort of a workaround? Well, the New Hampshire judge just recently says that, you know, I'm going to recognize at least on a putative basis that there's a class here. It meets all the requirements for a class action.

7:58Rule 23 under the Federal Rules of Civil Procedure outlined four criteria that have to be met. And it certainly makes a lot of sense that those would be met in the birthright citizenship context. You need a lot of people that would be affected such that the courts just wouldn't be able to bring maybe two or three or four or five lawsuits and bring them together and try them together. Maybe we're talking about thousands, and in this case, tens of thousands maybe right away, perhaps possible lawsuits. So there's numerosity. There's a common factual and legal predicate that has to be met. And again, it seems like this is pretty much the same.

8:42Everybody is going to have the same criteria. You either were born in the United States or you weren't. And third, there really is an ability to effectively pursue relief for everybody by just trying a few people and that there's fourth effective representation for the full class. And the judge in New Hampshire says, I think we've got that. I think we've got a class action here. So in the birthright citizenship case, that seems to be an avenue. And we still may also see in some of the state challenges coming forward and a judge is saying, we need to put in place a nationwide injunction to provide complete relief.

9:21So that's also still out there. A Trump administration spokesperson said the judge was abusing the class certification process. What do you think their arguments will be against the certification of this class when they appeal? Well, I think it's one thing to attack it from the podium or on social media and another in a court of law. And, you know, they put forward some kind of contrived argument. But it seems in this particular context, pretty clear case that a class action would apply. That's, I think, why the Supreme Court in the Costa case, you know, spends a good bit of time talking about the class action.

9:57I think this made a good vehicle for the court to tamp down on nationwide injunctions because it seemed like, in my view, the courts recognizing that this would have been the proper way of going about proceeding here in a class action format. There may be other situations where it might be stretching it, and we'll have to see. I mean, I do know that the Supreme Court has been a little bit reigning in even on how frequently lower court judges are certifying classes, but the factual and legal issues here really are the same. You know, you have parents that meet the criteria in the executive order and a child that's born in the United States.

10:41That's paradigmatic, and that's not a whole lot that's going to vary from one person to the next. In his concurring opinion, Justice Brett Kavanaugh mentioned the Administrative Procedure Act as providing the equivalent of a universal injunction. And so a federal judge in New York cited the APA when he set aside the administration's decisions to end legal protections for Haitian migrants. A Washington judge did the same in a case reviving asylum. Would these cases normally have been brought under the APA, or is this happening because of the Supreme Court's CASA decision? There's an important difference in what we can say about whether these are being brought under the APA or whether the relief comes from and is authorized by the APA.

11:32So it may be that these are being brought under immigration statutes or they're being brought in the birthright citizenship under a claim of constitutional law, the 14th Amendment. But these all are revolving around the questions of what the relief is that can be provided. And you're right. You're exactly right to say that these judges now are saying, well, there's relief that can be granted not through a preliminary injunction, which is grounded in the law of equity that goes back to even the founding of our country and to some of the early statutes giving courts authority, like the Judiciary Act of 1789, that's what the CASA court said.

12:20Well, no, that doesn't give you the ability. Now they're saying, well, we have another pathway. And I think you're right to say that this is maybe a workaround. One might look at it that way, but it's also just another alternative pathway in the same way that, you know, we all know that if someone, to take a completely different context. If somebody is accused of a crime and is found to be not guilty, that just means that the prosecutors haven't met the burden of proof beyond a reasonable doubt that the person's guilty. It doesn't mean that you can't then proceed with civil actions against that person.

13:03In law, we often have these multiple pathways. And as long as you have one that's met, Well, you know, maybe you don't need to use the others. So, yes, the federal courts haven't always invoked the Administrative Procedure Act, perhaps in the same way that these judges are now right after CASA. But, you know, they and the litigants who are making arguments before them are just doing what lawyers and judges do all the time. If, you know, one pathway or one possible means of getting some relief is not permissible, well, then go with what is permissible. Coming up, the drawbacks to using the APA.

13:47This is Bloomberg. This is the Bloomberg Tech Minute brought to you by ChatGPT. Now with ChatGPT work. I'm Carol Masser. Social media posts on sleep outnumber those on exercise by 3 to 1 and those on diet by 5 to 1, according to consumer researcher Ryla Global Consulting. And so it may come as no surprise that there are seemingly no limits to what we will do to get a good night's sleep. People are spending on everything from pricey sleep trackers, AI-powered scent therapy machines, to$3 ,000 body temperature-regulating Manosphere-endorsed mattress covers, and couples outfitting totally separate bedrooms.

14:27As Bloomberg's Dina Shanker reports, it all adds up to a sleep support industry that's a$300 million business, with growth coming from functional beverages and sleep powders, even as some experts warn that these products may not be effective and can even be harmful. Despite the spend, 6 out of 10 American adults still don't get the 7 to 9 hours of sleep the credible science says we need. As for experts, they recommend making lifestyle changes, such as getting sunlight and limiting screen time to improve sleep. That's the Bloomberg Tech Minute brought to you by ChatGPT. Put ChatGPT to work on your most ambitious ideas and projects.

15:04Get started at ChatGPT.com today by selecting Work Mode. Available on Plus and Pro Plans. What if you could have more wins? More support? More sound effects? At LPL Financial, we like the sound of that. Because LPL offers more. Advisors, what if you could have more ways to help your clients? Ready to invest? What if you could find an advisor that really understands you? When it comes to your finances, your business, your future, at LPL, we ask, what if you could? Paid advertisement. Investing involves risk, including potential loss of principal. LPL Financial LLC member FINRA SIPC. You already know how AI is changing how everyday work gets done, how much ground you can cover, and how fast a team can scale.

15:50To stay ahead, you need the tools that give you a competitive advantage built for this new era. Welcome to Agentic Revenue. Adio is the CRM for this world. It meets you where you work, compounds every customer signal into context, then acts on it across your pipeline to let you move in on match speed and scale. With agents and automations for every job in revenue, Adio orchestrates your work around the clock. Built to handle the scale of your workloads, extensible with API and MCP, and with the infrastructure to keep up with your most ambitious agents. Loved by high-growth startups like Granola, Modal, and Etched, Adio runs the work behind every win.

16:26That's Adio, the agentic CRM, the intelligent system that never sleeps. Picks up leads at 2 a.m., catches renewals before they slip, hands you the answer before you ask. Try Adio free at adio.com slash iHeart. That's adio.com slash iHeart.

17:09Procedure Act, because it has to be used to vacate an agency's action, so it can't be used to attack an executive order. It's a weaker tool since a Supreme Court decision in 1992, Franklin v. Massachusetts. It's generally thought that the Administrative Procedure Act doesn't really apply to the president. We can probably debate how Franklin v. Massachusetts is. But yeah, I think that you would ordinarily not see these APA set-asides against anything other than agencies. But executive orders themselves rarely are self-implementing. So all that executive orders, almost all executive orders are just that.

17:57They're ordering administrative agencies at the federal level to do something. And when they do it, they're subject to the Administrative Procedure Act. So, you know, I think it's still quite a feasible pathway to address something that's objectionable about an executive order. Just you have to wait until some agency actually follows that executive order for it to apply. Some government lawyers in cases are asking judges to pare back their injunctions because of the Supreme Court's ruling. Is that likely to happen? Well, I mean, I think it's probably likely that we'll have to have a reassessment of some of these nationwide injunctions, but that reassessment is, in many cases, likely still to result in what is effectively some nationwide relief when any of the three still available pathways exist.

18:58One is an equitable nationwide injunction when complete relief can only be provided that way. Two is through a class action and three is through the Administrative Procedure Act and its set-aside provisions in Section 706. Considering all this, that as far as we've seen, a lot of plaintiffs are succeeding with these alternative paths. How much do you think the Supreme Court ruling is really going to help the Trump administration? How big a win was this for the Trump administration? Well, certainly not as big a win as they've laid out, you know, and claimed for themselves. That's hardly the first time, right?

19:42They or, quite frankly, other politicians exaggerate what they have obtained. I think in the birthright citizenship case, it's probably not likely to be much of a win at all. And then the question is, will it maybe at the margin make it more difficult to obtain what is some kind of nationwide relief in other cases? And probably that's true because complete relief might not always be evident. It might be harder to meet the class certification standards, especially if the Supreme Court wants to scrutinize those even more rigorously. And this set aside will only apply in some proportion of the cases where there might want to be some nationwide relief.

20:37And the CASA court, by the way, also with respect to the set aside under the Administrative Procedure Act, says we're not deciding anything on that. So expect more litigation about really the extent to which courts can must rely on the set aside provision in 5 U.S.C. Section 706 of the Administrative Procedure Act. Yeah, that was my next question. How fast do you think this is going to return to the Supreme Court? Well, Justice Kavanaugh seemed to think in his separate opinion in the Casa case that the Supreme Court is going to be at the ready to resolve a lot of these preliminary relief questions.

21:24and that we're going to start to see even more of what we've already been seeing, which is cases going right on up to the Supreme Court in a way that I think certainly 10 years ago or 15 years ago, the Supreme Court wouldn't have been weighing in as readily and frequently. But yes, definitely expect more Supreme Court action. In some ways, that's an important upshot of the Casa decision is that the Supreme Court is still calling a lot of shots with respect to how and when the executive branch can be held to account for and be constrained by the rule of law. And why do you think so many people are paying attention, even some judges, to Justice Alito's concurrence in Casa, where he warns about the court strictly adhering to the requirements for class certification, etc.?

22:24Well, this is a Supreme Court that is remaking a good bit of what was for a long time fairly settled law, especially with respect to the relationship between the courts and the executive branch. And on the one hand, this court is skeptical of administrative power, but on the other hand, it seems also to be supportive of presidential power to a larger extent than prior courts and what's really at issue in some ways with the Alito separate opinion, which, by the way, only attracted one other justice. So maybe that should itself indicate that it's not really going to be meaningful. But I think what he raises is really at the heart of this matter is how much should the courts be weighing in and providing relief when the executive branch is undertaking action that at least the litigants think is unlawful.

23:25And if you think that there's a need for strong presidential power, then you might want to have lower courts be more limited in when they can issue nationwide injunctions and letting a president's administration go forward with action, even if it's being challenged in court, giving a little bit more leeway to the president. On the other hand, if you're skeptical of administrative agencies and their power, you might want to see the ability for more judicial scrutiny of administrative action. And I think go the opposite of what Alito and Thomas were urging. And maybe we should have more liberal use of the set-aside provision under the APA or under class actions.

24:13So, I mean, I think really this is a fascinating, fascinating case because it's really a pivot point in this tension between presidential power and the administrative state, and then where do the courts find themselves situated here in kind of policing the boundaries of the rule of law. We're in a realm in which the lower courts are faithful agents, I think, of a body of law that has existed for a long time, And they're, in a sense, in case after case, it seems, getting the rug pulled out from under them. And so they're dutifully, when faced with alternative arguments and alternative bases for providing relief, calling it like they see it.

25:02And that is the rule of law. That is what lower court judges should be doing. It at times seems like the Supreme Court doesn't really have those lower court justices back, if you will. And it's a very interesting time to have a Supreme Court that, you know, whether it's on presidential immunity or other questions here, you know, really kind of undermining what the lower courts as dutiful agents of enforcers of the law as they should. There are only two justices who have trial court experience, Justices Sonia Sotomayor and Ketanji Brown-Jackson. And I wonder if that plays into the justices' attitudes toward the trial court judges.

25:51Sometimes there's accusations of ideological differences. But I think there's another difference here is just that the Supreme Court is overseeing an entire judicial system. And it seems that as of late, you know, at least. This is the Bloomberg Tech Minute brought to you by ChatGPT. Now with ChatGPT work. I'm Carol Masser. Social media posts on sleep outnumber those on exercise by 3 to 1 and those on diet by 5 to 1, according to consumer researcher Rila Global Consulting. And so it may come as no surprise that there are seemingly no limits to what we will do to get a good night's sleep. People are spending on everything from pricey sleep trackers, AI-powered scent therapy machines, to$3 ,000 body temperature-regulating Manosphere-endorsed mattress covers, and couples outfitting totally separate bedrooms.

26:45As Bloomberg's Dina Shanker reports, it all adds up to a sleep support industry that's a$300 million business, with growth coming from functional beverages and sleep powders, even as some experts warn that these products may not be effective and can even be harmful. Despite the spend, 6 out of 10 American adults still don't get the 7 to 9 hours of sleep the credible science says we need. As for experts, they recommend making lifestyle changes, such as getting sunlight and limiting screen time to improve sleep. That's the Bloomberg Tech Minute brought to you by ChatGPT. Put ChatGPT to work on your most ambitious ideas and projects.

27:22Get started at ChatGPT.com today by selecting Work Mode, available on Plus and Pro Plans.

27:32With LPL Financial, we provide the services to help push you forward. When it comes to your finances, your business, your future, the only question should be, what if you could? Paid advertisement, Anna Kendrick, is not a client of LPL Financial LLC and receives compensation to promote LPL. Investing involves risk, including potential loss of principal LPL Financial LLC member FINRA, SIPC. You already know how AI is changing how everyday work gets done, how much ground you can cover, and how fast a team can scale. Stay ahead. You need the tools that give you a competitive advantage built for this new era.

28:00Welcome to Agentic Revenue. Adio is the CRM for this world. It meets you where you work, compounds every customer signal into context, then acts on it across your pipeline to let you move it on match speed and scale. With agents and automations for every job in revenue, Adio orchestrates your work around the clock. Built to handle the scale of your workloads, extensible with API and MCP, and with the infrastructure to keep up with your most ambitious agents. Loved by high-growth startups like Granola, Modal, and Etched, Adio runs the work behind everyone. That's Adio, the agentic CRM, the intelligent system that never sleeps.

28:35Picks up leads at 2 a.m., catches renewals before they slip, hands you the answer before you ask. Try Adio free at adio.com slash iHeart. That's adio.com slash iHeart.